Thoughts on Sources and on Genealogical Proof Arguments or Statements

I enjoyed reading a thought provoking post by Louis Kessler this morning entitled, "Source-based Thinking." Quoting his introductory statement gives the flavor of the post:

Genealogists have for too long been recording their name/event/fact/relationship conclusions first manually onto family group sheets, and now into the similarly organized data entry forms of their genealogy software. If they think of it, and if their software makes it convenient enough, they then just might decide to add a source to it … if they feel like it.

A genealogical proof statement or proof argument is defined by the Board for Certification of Genealogists (BCG) as follows:

Just as mathematicians construct proofs to convince others of the truth of mathematical statements, genealogists assemble proof arguments to convince others of their genealogical conclusions. A proof argument is a detailed, written explanation of the evidence and reasoning used to reach a genealogical conclusion.

The BCG article, "Skillbuilding: Proof Arguments" gives a step-by-step summary of how to construct a proof argument. In conjunction with this instruction, the article makes the following statement:

However, every piece of evidence uncovered during the course of research need not be mentioned.) Be selective. Include the best quality evidence available.

Based on nearly forty years of trial experience, I would consider that statement to be the "fatal flaw" in the entire structure of "proof statements." It encourages the person making a proof statement to ignore any documents that are contrary to the conclusions pre-determined. The so-called "proof argument" becomes just that an argument. Encouraging a "selection" of documents also seems to contradict the Genealogical Proof Standard requiring a reasonably exhaustive search and a complete and accurate citation of sources.

To the contrary, the approach encouraged by Louis above is almost the exact opposite position. Adding all of the sources is preferable to making a selection that supports an individual conclusion.

In the legal world, the various U.S. states have Rules of Professional Conduct governing the actions of lawyers in court and as they represent clients. In many jurisdictions, these rules are vigorously enforced. In Arizona, for example, the State Bar of Arizona, would publish a list of attorneys sanctioned every month for violation of the Rules. One of those Rules states as follows:

ER 3.3. Candor Toward the Tribunal 

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. 

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6. 

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Disclosing all of the sources used to create genealogical entries seems to me to be a minimum type of requirement. In my experience, I have been asked repeatedly about including a source that did not appear to the researcher to support their preconceived view of the facts. This has been true when there are issues as trivial as the spelling of the ancestor's name but also include variations in dates and other information. It seems very common to me, that researchers ignore sources when they don't fit into what they "already know to be the facts." As you can see from the Ethical Rule cited above, this attitude is inconsistent with the way I was instructed for nearly forty years.

Now, if we as genealogists wish to use quasi-legal concepts such a proof arguments or proof statements, then I think we should examine the consequences of accepting that type of activity. The legal profession has this particular Rule requiring full disclosure of all sources in support or adverse for a simple reason: you can't pick and choose your sources and remain ethical.

I am not advocating that genealogy move towards adopting even more legal jargon and standards. I have written against the idea that somehow genealogy and law are related in the past. I also fully realize that many "genealogical proof arguments" consider all sides of a relationship issue and include references to contrary sources, but I do think that we need to be painfully aware of the fact that there are no "genealogy judges" sitting out there deciding our "arguments" and enforcing the ethics.

In law, we write legal briefs. These are pure argument. We take our clients' position on a controversy and try to convince the tribunal that our client is correct. This whole structure presupposed the existence of some kind of tribunal. Genealogy has no such tribunals other than disagreements among researchers. Genealogy is acting on a personal level. It is more like an argument among family members where one family member is going "prove" that all the others are wrong. But in the end, who decides? The other family members are seldom convinced and the family member with the "proof" is very often just ignored.

Who are we addressing when we make our genealogical arguments? The vast majority of genealogists are unlikely aware that such arguments exist, written or otherwise. I can think of very few lawyers who enjoy sitting around reading case law except when the cases related to their particular cases. Even then, I suggest that few enjoy the task of doing legal research. In my experience, many attorneys would pay someone to do the basic case reviews and used new attorneys or law students for these tasks. From this perspective, constructing abstract proof arguments seems more aimed at the idea of establishing a "publication record" in the sense of university professors than it relates to any actual benefit to the overall genealogical community.

My family members with Ph.Ds are involved in the "publish or perish" system imposed on the academic world. Some of that same attitude spills over into some areas of genealogy. We have then used this idea that publication was a positive good to incorporate the quasi-legal idea that these publications needed to prove some ancestral connection. In both cases, the validating agency, the courts or the universities, are missing from the genealogical equation.

Where do we go with this position? We go with sources. We add every source that could be even remotely helpful in establishing our family relationships. If we come to some sort of conclusion, we realize that all historical conclusions are tentative and rely on documentation. We do not consider any fact to be "proved" in any absolute sense. If we wish to impress the community with our reasoning and knowledge in writing, we should go ahead, but we always need to realize that there is no one out there judging our conclusions. We should also realize that those organizations who are involved in accreditation are not going to check our sources and our facts, they are merely going to pass judgment on the form of our arguments. In the event someone does take an interest in our proof argument and writes a rebuttal or whatever, then who decides which of us is correct?