The Ins and Outs of Evidence for Genealogists -- Part One

Since about the mid-1900s, genealogists have had a tendency to borrow legal terminology. The genealogical literature is full of references to preponderance of the evidence, burden of proof, relevance, evidence, proof and other terms of legalese. There are, of course, attorneys who have become adequate genealogists, but the vast majority of those genealogists using legal terminology have no idea what the terms mean in the context of a legal action or law case and apply the words in a rather strange way to genealogy, which is mainly a historical discipline.

I have maintained for some time that using legal terminology was almost entirely inappropriate to what is actually done in genealogy. Law is based on advocacy and the main idea of actions in law cases is that any controversies are ultimately decided by a judge. The language of law has developed over hundreds of years of litigation and many of the terms have specifically defined legal meanings even though some of the words may be used in a non-legal context. For example, the word evidence has a specific legal meaning, but the word is also used in many other contexts. In law, the term "evidence" refers to testimony and documents that are allowed to be used at a trial. Whether or not information becomes evidence is dependent on a hugely complex set of court rules called the Rules of Evidence. Not every piece of information automatically becomes evidence. So, as a genealogist and not in a case in court, I say I have "evidence" that my great-grandfather came from Germany, I mean something entirely different from the way the term is used in a court of law. This is only the barest beginning of the differences between the way legal terminology is used and the way the same words are used by genealogists.

Most people associate the law with lawyers (also called attorneys in the U.S.). Not all lawyers know about evidence and court cases. There are lawyers who never go to court. They work in a variety of government agencies and private companies. They are essentially highly trained business people. In fact, it turns out that more attorneys in the United States practice law in the context of business or government than actually go to court as advocates. According to the United States Department of Labor, Bureau of Labor Statistics, this is what attorneys (lawyers) do:

Lawyers typically do the following:

• Advise and represent clients in courts, before government agencies, and in private legal matters
• Communicate with their clients and others
• Conduct research and analysis of legal problems
• Interpret laws, rulings, and regulations for individuals and businesses
• Present facts in writing and verbally to their clients or others and argue on their behalf
• Prepare and file legal documents, such as lawsuits, appeals, wills, contracts, and deeds

According to the American Bar Association statistics, about 75% of all lawyers are in "private practice." The rest work for the government, industry etc. However, there is an increasing trend in the U.S. away from trials altogether. See the American Bar Association Journal, "The Endangered Trial Lawyer." Therefore my profession as a Trial Attorney is becoming an endangered species.

The language borrowed by genealogists from the legal profession comes primarily from those attorneys that advise and represent clients in court. In other words, it is the language of litigation. Of course all attorneys learn a lot of other words and phrases that are peculiar to the profession. But a sizable percentage of attorneys never step inside a courtroom and know little more about the rules of evidence and the language of litigation than the average genealogist. They may have taken a class in law school about evidence, but that may be about all.

When I came out of law school in 1975, I immediately began representing clients in court. I did this except for one break to run a computer store, for almost 40 years. I was still representing clients until March of 2014. I estimate that I handled thousands of court cases. My case load was almost always over 100 active cases. there was a two year period when I was in court every working day except six days. OK, enough background. I am steeped in legalese. I can speak it, write it and some of the time I dream about it.

For this reason, I am painfully aware of the major and very significant differences between law and genealogy. Acquiring information about an ancestor and then drawing conclusions from the information and finally making a decision as to relationship is nothing at all like proving a case in a court. If there were any parallels, I would have won my case for every client. The fact that I became convinced that my client was right and the other attorney's client or clients were wrong usually had little or nothing to do with who won the case in court. In genealogy, we always win because there is no opposing party and no attorney sitting out there telling the judge (or jury) why I and my client are wrong and why he and his are right.

The difference between law and genealogy is not just superficial, it is dispositive. No one is going to get paid a lot of money or sent to prison if I find another generation of ancestors. If I choose to write up a summary of my genealogical research in a special format called a "proof statement," I am going to be the only person who really cares. Even if other relatives read the proof statement and are convinced I am right, so what? The next piece of historical information that is found could disprove my entire hypothesis or someone else could look at exactly the same data and draw a different conclusion. But then what? Who finally decides?

As an example, in the past, I have written about the supposed daguerreotype of my 3rd Great-Grandfather, John Tanner. My daughter and I have amassed a significant amount of data indicating that there is no possibility that the image is genuinely of my ancestor. So what? No one reads our arguments and even if they do, they reject them all as immaterial because their mother told them that it was a photograph of John Tanner. The whole idea of having courts, judges and juries is based on the premise that I can go to court and prove that I am right and the other side is wrong. Win or lose, I have the opportunity to go to court and try and prove that I am right. Where is my genealogical judge? Where is my genealogical jury? Once a case has been decided in court, the ruling becomes the "law of the case." The matter is over. It is not about ultimately who is right and who is wrong, law is all about court decisions. Once the court (judge or jury) decides a case (and subject to any appeals), the case is over. In genealogy "the case" is never over. The genealogical conclusions can always be reopened and questioned.

Primarily because of this tremendous difference between the methodology and goals of law and genealogy, using legal terminology is not acceptable. When I say that I am going to prove that so-and-so is my grandfather (or whatever) who am I kidding? Who will finally decide if I have enough "evidence" to "prove" my relationship? Me. That's it. As long as I convince myself that I am right, that is all I have to do. You might come along and "prove" beyond a reasonable doubt that you are right and I am wrong, but so what? Can you change my mind? Perhaps, but not likely. With the truth of the matter ultimately prevail? Will the John Tanner daguerreotype be ultimately discredited and all of the dozens of relatives who now firmly believe that it is a true image change their minds and accept the truth and take down the dozens of copies now online claiming that it is his image? Not at all likely.

Here is the summum bonum of the matter. Law suits (cases in court) end. Some one wins and someone loses or they both lose or they settle the case. Genealogy never ends. There is always the possibility of one more piece of information that will upset the entire apple cart. That possibility may become vanishingly small, but it is still there nonetheless. You may spend years "proving" that your third great-grandfather was a specific person, only to find that you chose the wrong second great-grandfather and you have been looking at the wrong family all along. Using legal language to support your genealogical conclusions results in an imaginary reliance on predictability and closure when there is none.

So why do we keep going back to using legal terminology in a genealogical context? As Tevye in Fiddler on the Roof says, "Tradition." We have developed a tradition of using legal terminology and we cannot now get out of the rut. Why do I care? I care because the effect of using legal terminology results in some very specific and challenging problems in genealogy including the tendency for people to claim ownership to their research. Because there is no advocacy in genealogy, every genealogist becomes their own judge and jury. We all own our research and our conclusions are right and everyone else is wrong and there is no one to tell us differently.

This series is a series because I have a lot to say on the subject. Tune in again for another installment, if you can stand it.