Second of a multi-part series
The story so far: a probate case is being tried to the court. The plaintiff, Mr. Cousins, is represented by the firm of Gried Avarice Mammon & Lust LLP. His attorney, Patricia Lust, must show client’s relationship to the decedent in order to prevail in the case. She has called as a witness one Jeanne Runner, and is asking the court to allow Ms. Runner to testify as an expert in genealogy. The defendant executor’s attorney, Noe Udont, has objected to allowing Runner to testify as an expert in genealogy. See this link to read the testimony leading up to this point. The judge is about to hear argument and then rule.
Judge: Ms. Udont, you may argue your position.
Udont: Your Honor, she may testify as an expert only if she is qualified by reason of knowledge, skill, experience, training or education and even, only if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.
Judge: Well, as the trier of fact, I can tell you it’s a fact that she knows more about genealogy than I do!
Udont: So that means she may satisfy a part of the test, but they still haven’t shown that she is qualified by reason of knowledge, skill, experience, training, or education. Why, she doesn’t even have a degree in history! She’s got no certifications. She has no training. She has no formal education. She’s an amateur in the worst way. She’s not a genealogist; she’s just a stay-at-home mom with a hobby!
Lust: Not so, Your Honor. Clearly, she has knowledge; you’ve just so found. She’s got experience, a decade ‘s worth. And she has had training. Just because she’s got no certifications doesn’t mean she can’t be found to be an expert.
Udont: If she was so good, then she’d have certifications. And Your Honor, I will argue that it is bad public policy to allow someone who is uncertified in a profession to testify in court as an expert. The court should want to encourage professional certifications so as to improve the quality of evidence that will come before it in cases like this. You remember what the Supreme Court had to say about the role of the judge as gatekeeper to keep out bogus expert opinion in those “junk science” cases, don’t you? Well, this is going to turn out to be the junk genealogy case, if you allow this witness to give an expert opinion!
Judge: You can be sure I recall what the court said in the junk science cases about the court’s role as “gatekeeper.” And I think that those cases have some relevance here. But I don’t recall the court saying anything about judges making public policy regarding certain professions. But let me ask Ms. Runner a couple of questions. Ms. Runner, do you have that article you wrote with you? May I see it?
(Witness hands the judge a copy of a journal).
(Judge peruses journal for several minutes).
Judge: I see in this article that you set out to prove the paternity of one Richard Jones. And you conclude that his father was one George Jones. I see that you’ve made extensive use of footnotes to cite your sources, and that you evaluate your sources and conclusions according to something called the Genealogical Proof Standard. Quite an impressive piece!
Runner: Thank you, Your Honor.
Judge: Now this, uh, Genealogical Proof Standard, is it the way evidence and conclusions are evaluated in the genealogical community?
Runner: It’s the gold standard.
Judge: I see another article in this journal that doesn’t seem to meet the same standards of rigor that you have in your piece. There are very few source citations. And even though I’ve never done any genealogical research, it is apparent to me that there are other places that the author should have searched. And he doesn’t seem to resolve any of the contradictions very well. So I’m ready to rule on the request that Ms. Runner be allowed to testify as an expert in this case. It seems to me–and no offense meant to anyone–but genealogy is not rocket science. Nor is it junk science. It is a field that calls for specialized knowledge, skill, experience, education and training. While certifications certainly are some evidence of specialized knowledge, skill experience education and training, they are not necessarily the controlling factor with respect to the quality of one’s genealogical research. Ms. Udont argues that Ms. Runner is a rank amateur; a mere hobbyist. And these terms are used in a pejorative sense. It’s not my job to influence whether or not genealogist ought to be certified as a general proposition. That’s for someone else to decide. It does seem to me however that there is a dichotomy of genealogists. Not professional versus amateur; not certified or accredited versus uncertified or unaccredited. Rather, there are creditable genealogists, and other genealogists. Put another way, there are serious genealogists and all other genealogists. And certainly a stay-at-home mom can be a serious genealogists. As I said, she knows more about it than I do, so clearly, the trier of fact, that being me, will be assisted in understanding the evidence or determining a fact in issue. I find that Ms. Runner has such specialized knowledge, skill, experience, education and training in the field of genealogy. I therefore find her for the purposes of this trial to be an expert in genealogy, eligible to give an expert opinion on genealogical matters at issue in this case.
Lust: Thank you, Your Honor.
Judge: Of course, Ms. Udont, you may call your own genealogical expert in your case in chief.
Udont: And we intend to do so, Your Honor. Plaintiff has been given notice of our expert and has deposed our expert, just as we deposed Ms. Runner prior to the hearing today.
Judge: It’s 4: 30; we might as well call it a day. Counsel and the witness be prepared at 8 a.m. tomorrow to begin the testimony. Court is in recess.
As the parties were gathering their papers up to leave the courtroom, Jeanne Runner who had left the witness stand, said to Lust, “So what does that mean exactly?”
“Well,” said Lust, “it means he thinks you’re an expert in genealogy, at least in this trial. It doesn’t mean we win, necessarily.”
Lust’s client, Mr. Cousins, the plaintiff, said, “I’m just a little bit worried about that certification thing. He didn’t exactly say it didn’t make a difference. And the executor’s expert is a certified genealogist. ”
Lust replied, “No, he didn’t say it didn’t make a difference. It does go to the weight of her testimony, not whether she should be allowed to testify at all.”
Runner said, “Do you think I should go out and get certification or accreditation as a genealogist? Would I make a better witness if I did?”
“As I understand it, accreditation or certification can be an expensive and lengthy process,” said Lust. “I think I agree with the judge–that the certification or accreditation issue is not one for lawyers to decide. You come prepared as a truth-telling, highly proficient witness, and I can do the rest, accreditation or no accreditation; certification or no certification.”
“Thanks,” said Runner, “I will see you in the morning.” Cousins said, “Thank you, Jeanne and Pat. See you tomorrow.”
After the witness and the client had left, Udont said to Lust, “Hey, Pat, got time for are drink at The Other Bar?”
Lust said, “Uh, yeah, the kids are out on an overnight school field trip and won’t be back until tomorrow.”
Next: A Coupla Lawyer Chicks Sittin’ Around Talkin’ ’bout Certification of Genealogists
December 29, 2009 Tuesday at 9:21 pm