Allison Rebadow and Jason Gart
Fact discovery for trial closes in three weeks. You’re an environmental lawyer missing one key piece of evidence that could prove your client isn’t responsible for cleanup at a former chemical site. Or you’re a product liability attorney who needs to show that your client had no relationship with a company whose products are the source of a toxic tort claim. An elusive piece of evidence can be maddening for a lawyer already juggling the intricacies of trial litigation. With so many places to look, where does one begin?
That’s where the applied historians at HAI | Legal come in. Their team of expert researchers have been helping attorneys and general counsel locate and contextualize historical evidence for more than 40 years. They are dogged researchers, professional fact finders, information sleuths – and the information they uncover often makes or breaks a case.
The professionals at HAI | Legal’s litigation research and analysis division are not your typical historians; Dr. Jason Gart, Vice President, who has successfully directed more than 400 historical and factual research investigations, describes the team as “eclectic.” The litigation research line is made up of historians and subject-matter experts whose academic backgrounds span from expertise in the modern wars in Iraq and Afghanistan to 16th century choral music to environmental science. But, for the purposes of litigation research, they all specialize in one thing: locating dispositive information.
Allison Rebadow, Director of Litigation Research, explains, “The attractiveness of this job is that we don’t specialize in one specific topical area of history, but rather in finding information. So, you tell me what information you are missing, and I'll figure out where we have the greatest chance of finding the answer.”
History Associates Incorporated, the parent company to HAI | Legal, was founded in 1981 by four historians who, after writing a seminal history of the Three Mile Island nuclear accident, founded a company devoted to using historical research to provide answers to contemporary questions.
With other services including content and digital storytelling, archives and information management and M&A due diligence, History Associates’ founders carved out a unique specialty – litigation research. Over four decades later, the group has assisted government agencies, state attorneys general, Fortune 100 companies and other high-profile clients with research and analysis in support of legal matters, regulatory compliance and public relations. All told, they’ve completed more than 1,400 litigation-related investigations since inception.
In the decades since, HAI | Legal has built unparalleled internal expertise on how to navigate the nation’s most complicated record repositories and databases. Their expertise includes environmental and chemical usage research, product liability and toxic torts research, slavery disclosure research, state of knowledge investigations and government contract searches.
Vitally, the team knows sprawling federal repositories like the National Archives and Records Administration and the Library of Congress inside and out. “The institutional knowledge that we've gathered over the last 40 years is essential to our success,” says Rebadow. “To some extent, in this industry, the door is closed to people due to difficulty in identifying potentially relevant records. Archives are not libraries in that document-level records are often not cataloged or easily accessible. Historians understand how to navigate complex collections. In other words, while lawyers may be able to perform litigation research, HAI | Legal historians can undertake this work faster and much more effectively.”
Kim Silvi, a senior historian and project manager for HAI | Legal, stays a little closer to the ground: She often leads contaminated site investigations, which come up frequently in litigation research. Silvi’s work with HAI | Legal inspired her to go back to school for a master’s degree in environmental science and policy. Her thesis will tie into her career by illuminating how environmental scientists and historians can work together to determine what happened at a contaminated site – which will also help lawyers trying an environmental or toxic tort case.
To some extent, in this industry, the door is closed to people due to difficulty in identifying potentially relevant records.
Few of the historical investigations HAI | Legal performs deal with ancient history. Lawyers don’t go to them for projects about the Hittites or the Peloponnesian War, jokes Gart. Rather, they contact HAI | Legal to find information on government contracts let to a defense contractor or file a series of Freedom of Information Act requests related to some regulatory matter.
Regardless of the period in question, the process is the same. First, the team is often contacted by a client’s outside counsel to answer a question, or set of questions, vital to a legal case. After the initial inquiry, and a conflicts check, the team will craft a proposal which includes a draft work plan, including benchmark avenues of research they anticipate accessing to find the necessary information.
Those locations aren’t always large federal or state repositories. And, though so much information is online these days, the team knows that Google searches and online databases don’t always include the information that the client needs. In fact, although the National Archives and Records Administration continues to digitize its extensive collection, of the 13.5 billion pieces of paper in the agency’s holdings, less than two percent has been digitized. Locating vital information often means having boots on the ground. They’ll field teams to search records in city halls, fire departments and small historical societies.
Once they’ve collected all the relevant information for a project, the team may be asked to prepare a report of findings. That report goes over every detail of research they’ve conducted – not just ones that fit the narrative clients are trying to argue in court.
For the team at HAI | Legal, an impartial examination of the facts is crucial to their ethical standards. Gart explains, “Our clients must be the advocates for their client. They’re the attorney; that's their job. However, we’re historians. Our job is to undertake research and prepare the most accurate historical interpretation that we can. Our findings may differ from the argument that the client wants to make. A lot of our job is saying to our clients, ‘Listen, the factual record just doesn't support this statement.’” Ultimately this benefits the client as it may push them to modulate their legal argument or perhaps even settle the case before spending an enormous amount on legal bills.
The firm’s commitment to the impartial interpretation of the facts is demonstrated by its policy to engage with clients only based on flat time and materials; they never agree to contingency work. All parts of the firm’s operation are strictly devoted to acting as professional historians – not making an argument for any one side, even the clients.
Another vital part of HAI | Legal’s process is collaboration within the team. The extensive institutional knowledge they’ve amassed is bolstered by a sharing of resources and experience among the historians. Rebadow notes that’s how the workplace is structured: “It’s never a one-person island,” she says. She remembers one instance where she asked a colleague if he happened to come across any articles on a topic she was researching, only to receive a dozen back in her inbox. This collective brainstorming brings additional value to the client: more historians working together to find the answers they need.
That sense of companionship carries through to the personal way in which they view their cases, as well. Though the firm’s clients are often major companies and government agencies, their work also benefits real people.
Gart recalls a time when a physician came to them for help. In the 1980s, she had practiced medicine for five years under a government program that had arranged to pay all her school debt in exchange for her service. Decades passed without incident, until one day, she received a letter stating that she had to pay back all her medical student loans.
The team at HAI | Legal took on the effort to prove that the program had existed. A research team searched the congressional record and found the enabling legislation, along with literature detailing the program as the doctor had described. In the end, the client presented the evidence and her medical school debt was released. Being able to help someone like her “transcends any dollar amount,” Gart says.
Because, sometimes, all a case is lacking is that one smoking gun. A lost contract, a regulatory document, a contextualized way of looking at old data – a missing piece of information to connect the dots. When a lawyer has a question about events that took place one or one hundred years ago, HAI | Legal has proven for more than four decades that they can find the answer. You just have to know where to look.