March 01, 2017
Litigator's Muse: Sartre and How the Witnesses See Your Case
Michael E. Tigar
This philosopher walks into a café. He is Jean-Paul Sartre. He is to meet his friend Pierre. Sartre is late. Pierre is usually punctual. Sartre looks around for Pierre. The café is full of people, conversation, aromas. But were we later to call Sartre as a witness, he would say, “I’ll tell you one thing. Pierre was not there.”
Discussing his visit to the café, Sartre wrote:
No one object, no group of objects is especially designed to be organized as specifically either ground or figure; all depends on the direction of my attention. When I enter this café to look for Pierre, there is formed a synthetic organization of all the objects in the café, on the ground of which Pierre is given as about to appear.
Sartre has defined for us what trial testimony is all about. When we ask questions, we are retrieving the witness’s consciousness of some past event. That consciousness was formed based on “the direction of [the witness’s] attention.”
Put another way, we do not see “facts” in litigation. We see instead their remnants, traces, evidences, fossils—their shadows on the courthouse wall. The witnesses recount: They have perceived, do now remember, can express, and want to tell the truth, more or less. This characterization of testimony is an application to our trial lawyer work of Sartre’s insight in Being and Nothingness, the book that contains the anecdote about Pierre. Sartre was cutting through the debate about materialism versus idealism. That debate concerns the external world. For an existentialist, as for the trial lawyer, the external world is only marginally relevant. The question for us is not “what happened?” but rather “what can we—honorably, ethically, and in harmony with the rules of evidence—demonstrate to have happened?”
Therefore, the first question of our prospective witness is not “what did you see?” It is “what were you doing there?” Or “what was the direction of your attention?” We follow up by asking, “What did you expect to see?” Going deeper, we want to know what set of attitudes and preconceptions the witness brought to the event. After all, as Anaïs Nin has pointed out, “We do not see things as they are, we see them as we are.”
We will also ask this witness what influences have been brought to bear on that initial consciousness of events—the passage of time, the suggestions made innocently or not by others, or the natural tendency to favor one’s friends.
Consider the fallibility of eyewitness identification in a robbery case. The witness’s attention may have been directed toward trying to escape danger or consumed by the hope of getting out of the situation unharmed. Then the witness is interviewed by the police and prosecutors, shown photographs or a live lineup, and eventually enlisted to testify for the prosecution. By that time, the witness is not simply a vessel containing recollected consciousness: He or she is on one of the teams in an adversary contest.
This last point is significant. In our adversary system, a witness may come to feel that he or she is on “one side” or another, and that his or her testimony is aimed at achieving a result rather than recreating consciousness of a past event. The witness becomes alienated from his or her own remembered experience. We have all seen this phenomenon at work. Our job is not only to explore all the ways in which the initial consciousness was well or imperfectly formed but also to find out what happened to it on the way to the courthouse.
Witness examination, on direct or cross, is a process of reconstruction and deconstruction of consciousness. When I cross-examine a witness, I explore how well or how badly the witness was able to sense—to perceive—what he or she describes. What was the direction of the witness’s attention? I probe the witness’s mode of expression to clarify what the witness said. I inquire about his or her biases. These are three of the basic tools of cross-examination: probing perception, meaning, and candor. The fourth focus of cross-examination is a witness’s memory. When we relate what we have perceived, time and the tide of events may have eroded or reshaped it. The manipulation of memory—recollected consciousness—has caused many injustices in the system that calls itself justice.
Of course, our witnesses will not only testify: They will have photographs, documents, charts, and objects. However, none of these has any meaning until and unless it is authenticated by a witness and placed in context.
When we have found and imagined the impression of our case that we want the jurors to have, we may be tempted to believe that our most important work is done. This would be an error.
Our opening statement must honor Sartre’s insight—and also Anaïs Nin’s:
Members of the jury. In this opening statement, I want to share with you a confident prediction about what the evidence in this case will show you. The testimony of the witnesses, and the pictures and physical evidence they will bring, does not come in all at once. You might think of this process as a group of people working on a puzzle. Each person brings a part of the picture. Bit by bit, an image becomes clear. To help this process along, I want to introduce some of what these witnesses will say and bring. But also, I want to set out in advance the whole picture that will emerge when all of the testimony is done.
This image of an opening statement tells you what you must carry around in your head when you think about your case. You should be hearing the voices of witnesses who will tell the story, and not your own words—however eloquent you believe them to be.
Seated in the café, waiting for Pierre, you might ask yourself, “If something really important happened right now, how would I tell the story? Which of these people around me would be in the best position to describe the events?”
More prosaically, Edward Bennett Williams used to tell of his going to court in the days before copying machines. He was lugging three or four law books. An old courthouse habitué saw him and said, “Throw away those books, son. Get yourself a witness.”