September 01, 2016

Claude Monet and the Theory of Your Case

Can juror impressions change during the shared journey of a trial?

Michael E. Tigar

Note from the Editor: This is the first of four essays by Michael E. Tigar, former Section chair and author of—among other works—Fighting Injustice, Persuasion: The Litigator’s Art, Examining Witnesses, and Thinking About Terrorism: The Threat to Civil Liberties in Times of National Emergency—all published by ABA Publishing. These essays are not “how-to” guides but, rather, ideas about aspects of trial advocacy. The remaining essays will draw on the works of Yeats, Sartre, and Susan Sontag.

Our lives, and those of jurors, are governed by impressions. A hundred times a day, we make a decision—turn left, step off the curb, order that hamburger, cross the street to avoid someone who looks a little suspicious—based on a moment’s observation. We bring to bear our sight, hearing, touch, smell, and taste. Our past experience informs our choice.

  1. Two lovers, hand in hand, checked in to a hotel.
  2. Two deviant fornicators showed up at the Motel 6.

These are two descriptions of the same event. However, your mental picture based on the first or second description will almost certainly be different. That difference is based not only on the words in each description but also on your own social and cultural conditioning at this point in history.

The “impression” is an either-or. Is Edward Snowden a traitor or a patriot? What impression does a police officer have about a person of color he confronts in the street, and how does that impression differ from that of so many others in the community?

When we try a case, we want the jurors to have a particular impression of our client and our client’s cause. Yet, we sometimes become so involved in the details of case preparation that we forget or ignore the impression that we must seek to create.

In 1874, Claude Monet exhibited a painting in Paris, an unconventional depiction of sunrise at Le Havre. “What shall we call it?” his brother asked. “Mettez ‘impression’”—call it an impression—Monet replied. Impressionism got its name.

Monet rented rooms across from the Rouen Cathedral façade and painted it 30 times. Each painting, with different effects of light, shade, weather, and time of day, gives one a different impression. His paintings of the seashore direct us to consider particular people and to see them in particular ways.

Yet, Monet’s work is not “abstract,” nor does it bend and reshape the real world that he depicts. Monet was a careful observer. The different impressions of the same scene are creatures of the same reality, which can be seen differently depending on circumstances. His paintings from this period, including notably his Gare St. Lazare series, make the material world come alive. “One can hear the roaring of the trains,” wrote Émile Zola.

We trial lawyers are impressionists, seeking to present a certain image of our case within a framework defined by the rules of evidence and procedure.

Look carefully at some of Monet’s paintings, having in mind what he was trying to say to you. He has considered every detail, every stone. He has considered light and shadow. The impression evokes a reaction because the artistry is honest and accurate.

Someday, go to the Musée Marmottan on the outskirts of Paris. Look at Monet’s personal collection of Japanese line drawings; he was impressed by that exacting form of depiction.

Our task, from when we first see the client, is to build an impression of the client and his or her cause. That impression will be present in every pleading, argument, witness, and exhibit.

Seeing ourselves as impressionists is more than an idea about case theory and case preparation. Monet’s work gives us a sense that the impressions we might create can be powerful enough to shake juror prejudices and reshape juror consciousness. Do you doubt that? Reread Clarence Darrow’s summation in the Ossian Sweet case and see the work of this master impressionist of the courtroom.

As we get deeper into the case, we may adapt our proposed impression, adding details, adjusting light and shadow, giving this or that element greater prominence. But every day in every case, we should perform the exercise of describing what is in our mind’s eye about the case as a whole. We should train ourselves to “say our case” in a few words or a paragraph. It is not enough to imagine the impression we wish to depict. We must do the hard work of case preparation.

To consider the power of the impression, think about the punishment phase of a capital case. Here stands a defendant convicted of a crime so serious that he or she is subject to the death penalty. The jurors are to give, in Justice O’Connor’s words, a “reasoned moral response” to evidence about the offense and the offender. The state portrays the crime in horrific detail and the offender as a person not fit to live. Victim impact evidence adds to the picture.

The defender’s job is to portray this human being as someone whose life matters. We build an impression. We are not “humanizing” the defendant; he or she is quite human enough. We are seeking to help the jurors see that humanness. The careful, accurate, evocative impression that skilled and ardent trial lawyering can create provably saves lives. That reasoned and moral impression triumphs over one based on anger and vengeance.

The impressionist canvas is a work that is imagined and then comes into being. Each witness, each exhibit, adds brushstrokes. Forming the impression begins with the opening statement, a prediction, and a sketch. The completed work begins to appear as we and the jurors take the journey of trial together. That is, we do not present an impression. We build, or create, one as the trial unfolds. We introduce jurors to our principal theme, then work just as Monet worked, with exacting attention to detail, yet never losing sight of the whole. Some of us, in our opening statement, use the metaphor of a mosaic or a picture puzzle, rather than that of a painting; these images embody the same basic idea.

Can juror impressions change during the shared journey of a trial? Am I right that thinking of ourselves as impressionists helps capture the relevance and the power of Monet’s vision? All of us who try cases have seen it happen. In jurisdictions that allow lawyers to talk to jurors after the trial, I have listened as this or that juror described the trial as a process in which details became clear, and initial ideas yielded to new insights, and then the juror came to have an impression of the case that carried the day. These depictions included comments not only on witnesses and evidence but also on the impression of candor and commitment—or lack of those—that the lawyers conveyed.

Michael E. Tigar

The author is an emeritus faculty member of the Duke Law School and American University, Washington College of Law.