By Emily Jackoway | February 17, 2022 | Legal Consultant Limelights
Dr. Jason Gart has been working in the legal field for nearly 15 years – but he’s never held a position at a law firm. He is a historian, through and through, and in that role occupies a unique space in our guide to the nation’s top consultants and advisors to the legal industry. As Vice President and Director of Litigation Research at History Associates Incorporated, his historical research and analysis has helped hundreds of clients form their cases. The matters he and his team investigate range widely from product liability and toxic tort research, to investigations related to military conflicts, to potentially responsible party (PRP) searches, among many other areas. Gart’s pioneering work in applied history and legal consulting has been to the benefit of lawyers and major companies across the country.
Lawdragon: So, explain to me how lawyers can use History Associates’ services to help them on their cases.
Jason Gart: Our job is to take complex issues being tried in court and to help our clients and, ultimately, the judge and the jury, understand the historical context surrounding them. In 2021, it's easy to look back at the way events played out in the past and ask, "Why would they have ever done that?" That’s where we come in. We help find dispositive records and explain why things happened the way they did when it affects a case being tried today.
LD: What sort of matters do you handle?
JG: Well, many of our projects tend to be confidential. In some cases, that’s because we might testify as expert witnesses, but in other cases, clients don't want an opposing law firm to know they’ve engaged us because of the sensitivity of the research. We offer support throughout the entire legal process. Our historians draft targeted Freedom of Information Act requests; assist in pretrial motions and discovery requests; analyze historical materials provided by opposing parties, experts, and eyewitnesses; but our principal service is to undertake research in federal, state, or local records.
LD: So, you’re like a secret weapon.
JG: We hear that a lot, yes.
To give you an example of some of the matters we handle, though, a fair number of clients come to us trying to find federal government contracts. The client might be an aerospace firm or a chemical company that had some relationship with the federal government over a period of time.
We’ve looked at contracts executed during World War I, World War II, the Cold War and now we're doing research on the conflicts in Iraq and Afghanistan. The problem is that federal government contracts are maintained for six years and six months after the last contract action. So, that means that if your company had a contract in 2001, the government may not need to retain it anymore. So, we figure out if it might have survived.
LD: That’s fascinating. What does your overall client base look like? You typically do defense work, correct?
JG: It's about a 60/40 split. We'll work for anyone as long as we can clear a conflict and they respect the historical record. So, we've worked for federal agencies, and we've worked against them. We've worked for state attorneys general, and we've worked for numerous Fortune 100 and 500 companies.
We're actually working on a plaintiffs’ case right now that may develop into a class action suit. Sometimes plaintiffs’ lawyers will approach us wanting to do contingency work, but we don’t do contingency. We do flat time and materials, so the bulk of our work is going to be on the defense side.
LD: It's interesting that you don't do contingency. Is that a hard rule? Because, gosh, some of these plaintiffs’ class actions can recover a huge amount of money.
JG: The reason we don’t is that the founders of the company wanted us truly to be historians, and there are professional ethics that govern our work as historians. Those ethics dictate that the facts come first; we can’t have any other motive in performing our work.
Attorneys have to be zealous advocates for their clients. Historians cannot be. We must be advocates for the facts alone. It's my responsibility to give an honest interpretation of what I believe happened in the past. So, the fear is that if we do contingency work, those principles won’t be upheld, or will appear to have been so.
LD: So, sometimes you're delivering bad news to clients, then.
JG: A lot of times, yeah. And that's okay, too, because the client is still listening to the facts.
That’s the neat thing for me – and I think this is what my academic, teaching colleagues sometimes don't understand – when my team prepares a report for a client, that client is reading every line and every footnote. That never happens if you publish a book, right?
JG: Or, if you assign readings to your students, they probably won't really read them, or all of them. Our clients read every line, every word. And, if what you find doesn’t fit their narrative, you can say, "Here's the evidence. Here's how we came to our interpretation."
And the good clients – and most of them are – are appreciative of that, because they understand that these are very complex historical events. They understand that there's probably going to be another fact expert on the other side, and if we don't show them the facts now and they build their case off of incorrect or inaccurate evidence, that's going to come out in court or mediation. So, they want that analysis so that, number one, maybe they can mediate, and number two, they can decide whether their argument is one they want to pursue in court.
LD: Absolutely. That honest presentation of the facts is extremely helpful. Why is it more beneficial for a lawyer to go to your firm rather than doing their own research?
JG: Well, one of the challenges attorneys face when they do factual research is that they go as attorneys and not as historians. They are trained in researching legal cases and arguments, not in historical document location and analysis. These are different skills based on distinct training and experience. My team are experts on navigating the federal records system and other arcane record-keeping systems. Our knowledge of history, record retention schedules, and context gives us the framework to know what information to look for and helps us uncover hidden resources.
Moreover, they have billable hours, so they don't have a lot of time. Historians – we're academics, so we’re low-key. We can slip into a building easily and say, “Hey, how you doing? We're looking for this.”
LD: That’s fascinating. It kind of sounds like a dream, what you do – digging through the hard copy files, finding old pieces of information that haven’t yet been digitized. Maybe I’m romanticizing it.
JG: You're absolutely not. In fact, that's the heart of what we do.
I mean, you might think, because of Wikipedia and Google and all the great databases that are out there now, that you can just pretty much find anything online, right? Our business has proven that, yeah, there is a lot online, but you need to understand that less than 1% of most holdings at the National Archives are digitized.
So, if you're an attorney looking to construct a case, you can't base your research exclusively on what can be found online. There's a massive amount of material in repositories that has never been digitized, and may never be, and that information is usually the most valuable.
So, if the goal is truly to reconstruct the past, you need to make sure you leverage not just the internet and digital records, but analog ones, as well.
LD: Can you tell me about an instance where that sort of hands-onarchival research has really paid off?
On one project there was a waste plume under a site in the Midwest, and the client was trying to understand who caused the contamination. The waste was TCE, which is a cleaning solvent that can get into the ground and breaks down into some nasty things.
The client was fairly sure the waste had come from this building on an adjoining property. So, we undertook newspaper research, searched the trade literature and reviewed online health inspection records to understand the historical operations of the neighboring business. We then suggested that we should send a research team to this local university that had some records pertaining to this company.
The clients were on the fence. It was $3,000 for us to fly out there, and they weren’t sure if the archives really had anything of value. But they sent our team out and as we started collecting documents an archivist at the university said, "Wait, we do have some kind of maps, or something." Our researcher jumped on it and said, "Oh, could I see the maps, please?"
The “maps” were actually blueprints of the inside of the building. The floor plans pinpointed exactly where the degreaser machine was in 1970, which, when the environmental experts overlaid it on top of the current plume, completely made the case for that machine in that building being the source of the waste. There was no confusing the evidence.
So, our practice involves a lot of spadework and just a little bit of luck. There's a lot of methodology, but then there's also a little bit of luck.
To give you an example of how historians can be better equipped to do this kind of research than attorneys, in another project, our client wanted to look into how these chemicals, PCBs, were used during World War II. The client had done his own research at the National Archives using some paralegals or young associate attorneys and then asked us to try.
The client’s team had been using “polychlorinated biphenyls” as their search term for PCBs. Well, we knew why they weren’t finding anything: that wasn’t what those chemicals were called by the War Production Board in the 1940s. They were called “chlorinated diphenyls”. If you search PCBs, you're not going to find anything from that era. It would be like searching “airplane” versus “aeroplane.” “Airplane” is a modern term, but “aeroplane” is what fixed-wing aircraft were called in the 1930s.
So, in situations like that our value comes into play because we have the historical knowledge to perform searches that generate relevant materials.
LD: That makes sense. Can you tell me about any contemporary issues you’re working on currently that people might not realize need that historical context?
JG: Well, one issue we’ve worked a lot on is climate change.
LD: Who are your clients when you’re working on that?
JG: A host of companies, both in the United States and abroad. Some of their questions are regulatory, like finding information for annual reports, and some of it is digging into the history of climate change impacts – looking into how coal was first used, or how global warming was understood during a certain era. For us it's really a continuation of the environmental investigation we've done for various clients throughout the years.
It's a very hot topic right now, so to speak, but there’s certainly a lot of historical context to it. So, we can find that context, and we're also very good at distilling information. We take a big topic and synthesize it to pinpoint how it relates to the client’s question.
LD: Do you have any lawyers on staff to advise on that synthesis?
JG: No, we are all historians, archivists, or subject-matter experts, but we’ve worked in the legal field for quite a while.
And we don’t claim to be lawyers, either – our jobs are linked, but very different. And I should also say that all the cases that our clients have won, they’re the ones who have really done that work to come out with a favorable verdict. I don’t want to take credit for their great work. But what we do to help is we understand where documents may reside and bring that historical method to bear on the matter at hand. When you have lawyers and historians working together, it’s the perfect way to tackle a case.