Effective litigation reports differ in some important ways from materials prepared for an academic audience. In this workshop, I will share specific tips, advice and guidance for historians preparing expert reports for litigation or other dispute resolution processes. The session will include sections on working with counsel and clients, structuring research projects and written materials, the role of the historian-expert in the dispute resolution process, and strategies to increase the effectiveness and impact of the presentation of historical information in dispute resolution. I have had the privilege of being mentored by skilled counsel, clients and other experts and will draw on my experience in court to offer support to other historians coping with the high-pressure litigation environment.
Preparing Historical Reports for Use in Litigation or Other Dispute Resolution Processes
On Friday, January 27, 2023, the CHA held its sixth workshop and tenth event in the Canadian Historical Association’s Virtual Workshop and Roundtable Series, 2022-2023. Gwynneth Jones spoke from unceded Coast Salish territory in Vancouver about Preparing Historical Reports for Use in Litigation or Other Dispute Resolution Processes – when historians go to court to provide their expertise.
Jones explored several themes through her talk, including the importance of neutrality, following the rules, and staying focused on your strict area of expertise. Before the mid-1990s, Jones said, there were not a lot of rules governing expert evidence. But courts developed rules to discourage the practice of having experts aligned with one type of party in a litigation. The expert witness – no matter who is paying their fees – must be remain impartial, and provide the complete truth, both in the reports they file and the testimony they give.
Sometimes historians are asked to defend their expertise. This is where it is most important for the historian to report strictly on those areas where they are an expert. Historians are most likely going to be providing evidence or helping people assess what happened in the past. Jones said her job is most often to set out the narrative of events that led to a claim; there are others who specialise in, for example, cultural groups, or more specific areas of historical work. In any event, what is most important is to “stay in your lane,” and never speak on something you are not qualified to as an expert. This can undermine the historian’s credibility.
Courts have different ways of thinking about historical voices than others do. Courts look at different historical perspectives as though they were witnesses at a traffic accident. Who is reliable? What is contradictory? As historians, we can help courts understand what the evidence looks like. Who had a closer relationship to the people involved in the incident? Did these people have strongly preconceived views? Did two people disagree because of the context in which they are making their remarks? By putting all these perspectives together in a narrative, historians can weigh historical evidence and help others understand the evidence in its appropriate context.
Historians should be prepared to have their work and expertise scrutinized in court, and it is important for the historian to be honest. Judges, Jones said, love it when experts say they do not know something – it means they are aware they are not omniscient. Straying too far from your expertise gives opposition counsel the opportunity to question your suitability as an expert. Allow other experts to answer their own questions; answering for your own report will typically be enough.
Opposing counsel can also ask to see all a historian’s work, including notes, revisions, and anything else that went into making the report presented to the court. Apart from retaining everything, it is vital to be careful with written communication throughout the process – always be neutral. You will also be expected to provide a copy of every document you cite, including secondary sources. Reports are footnote-heavy, because almost every statement the historian makes has to be backed up. Since paraphrasing can sometimes cause uncertainty in interpretation, the reports are usually full of direct quotations from the documents.
Historians who work for the courts should remember their reports are going to be very closely read and they will be cross-examined by counsel. When in doubt, Jones said, the historian should defend their credibility at all costs – it is the most important asset they have as an expert.
Gwynneth Jones has been engaged in managing and conducting research for litigation and dispute resolution processes for over 35 years, for governments, First Nations and Métis clients. She has testified as an expert in nine trials and has reviewed reports and prepared research materials on dozens of issues related to Indigenous rights and claims. Her evidence was described as “crucial” by triers of fact in such leading cases as Powley (2003) and Daniels (2013).
The recording of the workshop is now available on the CHA Youtube channel.