Some people eat, sleep and chew gum, I do genealogy and write...

Saturday, October 10, 2015

The Reasonable Man Standard and Genealogy

The Reasonable Man Standard (now politically correctly renamed the Reasonable Person Standard) dates back into English law in the early 1800s with the early case of Vaughn v. Menlove, 2 Bing. (N.C.) 468, 132 Eng. Rep. 490 (Privy Council 1837). In that case, the "reasonable man" was referred to as a "man of ordinary prudence." From this early case, modern criminal and tort law have evolved a complex standard that is commonly given as a jury instruction in the courts in the United States. Here is an example from the California Civil Jury Instructions (CACI) 401. Basic Standard of Care.
Negligence is the failure to use reasonable care to prevent harm to oneself or to others. 
A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. 
You must decide how a reasonably careful person would have acted in [name of plaintiff/defendant]’s situation.
Whether or not a person acted "reasonably" has been the basis of a myriad of court arguments over the years. One of the sources of the CACI Instruction is cited as follows:
The California Supreme Court has stated: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations].” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464 [303 P.2d 1041].)
The shortest definition of a Reasonable Man is from the Restatement Second of Torts, Section 283 which provides:
Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.
By some metaphysical and completely inexplicable method, this complex and often disputed legal term has been applied to genealogical research. The Genealogical Proof Standard, a proposed rule for all genealogical research refers to the standard twice in the introduction and twice in the elements section. I have decried in writing the legal antecedents of genealogical terminology on various occasions but who am I to oppose the authorities in this matter?

If we wish to consider using the Genealogical Proof Standard, we are forced to confront the concept of a "Reasonably exhaustive research" usually shortened to a "reasonably exhaustive search" for records. Advocates of the Genealogical Proof Standard often exhort their adherents to do a "reasonably exhaustive search" both with and without an explanation of what would or would not constitute a "reasonable search." There are dozens (perhaps hundreds) of articles online from a variety of genealogists mandating a "reasonably exhaustive search." What all this boils down to is you keep searching until one of the following occurs:
  • You die
  • You get tired 
  • You run out of interest in the project
  • You have to meet a deadline for printing your results
  • You cannot find any more records
  • You get distracted
  • You give up
Since there are no genealogical police, judges or juries out there to challenge your actions, whatever you end up doing is "reasonable." Wait. Wait. When does it really become unreasonable? In the world of genealogical proof standards, your efforts, no matter how well meaning, become "unreasonable" when someone (including yourself) comes along and finds another record even if that record makes no difference whatsoever to your previous conclusions. So, contrary to the original, legal meaning of the word "reasonable" in a legal context, the genealogical meaning of the word is self-determined.

Originally, the idea of imposing a reasonable standard dealt with the actions of juries in deciding a case. The jury decides whether or not a person acted reasonably. But now, in the genealogical context, reasonableness is determined entirely by the individual unless someone comes along and finds another document or two or three or whatever. In that case, what was reasonable becomes "unreasonable." Why then are there so many genealogical journal articles that go unchallenged?

The answer to this question is rather simple. Who cares? Really. If I write a very acceptable journal article about my investigation of a genealogical problem and I demonstrate a "Reasonably exhaustive search," who is going to care enough about my ancestors to write a response? But you say, people respond all the time. Well, yes, but to prove me wrong they would have to redo all of my research, looking at all my sources and come up with something new. Does this happen?

Well, as a matter of fact, it happens all the time. Maybe not in the journals that talk about reasonably exhaustive searches, but in real life. Genealogical conclusions change all the time. Why don't the published articles have more challenges in print? Well, perhaps it is because the same people who write the articles in the first place are sometimes the ones who determine what to print and because finding new sources, if an experienced genealogist has searched, is really difficult.

But does this really have anything to do with reasonableness? I think not. I can always define my own actions as reasonable, both before and after the fact. What we need to focus on is whether or not the sources answer the question. If I have a birth certificate (one document) showing where and when I was born, is it reasonable for me to spend my time looking for additional documents on the chance that the birth certificate is wrong? What if I find a birth announcement in the newspaper with a different date? So what? Do I rely on the certificate or the newspaper article? Of course, this argument leads to an extensive discussion of the reliability of sources. In the end, all that really can be said is that all historical (genealogical) investigations are tentative. We can never reach a truly final conclusion. Any attempts to cloak a "final" conclusion or a "proof" in absolute terms is ill-advised and unrealistic. There might always be one more record out there (or DNA or whatever) that proves everything wrong.

1 comment:

  1. Good Article. Have to say that using the term 'person' is not about PC, but rather about respect.