John French Sloan was a 20th-century artist, a founder of the Ashcan School, and painter of striking and evocative scenes of life on New York City’s streets. He would observe people, places, and events, and write a description of what he saw. Then he would paint the scene, relying on what he had written.
There is a lesson here for the advocate. We have a mental image of a scene. We want the deciders to have the same image in mind. We must create the image with our questions and the witnesses’ answers, or with the words we speak in argument to the court or jury. We can learn to make these word pictures. First, we must learn to observe people and events in a mindful way. Look up from where you are reading these words. Focus on an object, a person, an event. Describe it to yourself; don’t summarize. Put a description of the scene into spoken or silent words. Or call to mind an event in a case you are preparing for trial. “The lab tech drew blood” is a summary. Unzip that statement and you have: “The lab technician was wearing a white coat. Her name, Doris Wilson, was embroidered on the front. She held Ann’s arm and placed it on the counter. She ran her gloved hand over Ann’s wrist, looking for a suitable vein. Then she punctured the vein with a hollow needle. . . .”
I recommend looking up the Wikipedia entry for John French Sloan. Focus on images of his paintings. Imagine what he would have written in his notebook as he put into words the scenes that he later put on canvas.
It is not enough, however, that we emulate Sloan’s mindful observation. He was communicating with himself. We must communicate with judges and jurors. They will interpret words based on the cultural, social, and personal experiences that they bring to the process. Each juror who hears “the pediatrician examined Joey Johnson” has a different picture: Is the pediatrician male or female? What does “examine” mean? And so on. Language is not universal. If it is important to your case that the jurors have a particular image of the doctor, you must draw one with words—yours or a witness’s.
Your focus on detail can serve you well on cross-examination as well. Consider this pointed exchange as Edward Bennett Williams crossed government witness Jake Jacobsen in the trial of John Connally:
Jacobsen: Well, it was something like that.
Williams: No, tell me what it was, Mr. Jacobsen, not whether it was something like that or not. You tell us exactly how it was, Mr. Jacobsen.
Understanding Sloan’s method of work, we approach the testimony of each witness by considering the scene we wish the witness to depict, the witness’s point of view, the scope of that scene, and then the details the witness will provide.
Q: Please tell us your name.
A: Abigail Johnson.
Q: What do you do for work?
A: I am an emergency room doctor at County General.
Q: On April 20 of last year, were you at work?
A: Yes, I was.
Q: Tell us please what were your job duties that day.
We are defining the direction of her attention. Ask more questions if necessary to establish where she was, what she had a duty to observe, and what she had a duty to do about what she saw. Make us know that she is a reliable observer.
Q: Did you treat Mr. Winston that day?
You have been to the hospital—a non-delegable duty if you are trial counsel. You have, like Sloan, written a description of the emergency room entrance, the gurneys coming in, the waiting room, the activities of the patients and staff. Question by question, ask the witness to describe all of that. Again like the artist, bring the focus up close: Ask Dr. Johnson to tell us about her encounter with Mr. Winston.
Q: Where were you when you first saw Mr. Winston?
A: I was in one of the examination rooms, just off the entrance of the ER.
Q: What does that room look like?
A: The room is about 10 feet by 10 feet. There is a stainless-steel counter, three steel cabinets, a sink. On the wall is a blood pressure monitor and other equipment that we use to evaluate the patient. The counter and sink have instruments and supplies that we use to treat the patient.
You will ask question after question until the verbal description—the words—have supplied all the details of the picture in your mind. You may want to have a photograph of the examination room to guide the inquiry, but without omitting any relevant detail from your questioning. The photo will serve as a reminder of the testimony when it comes time to sum up. You will also have exhibits such as the hospital chart to use as tangible reminders of what Dr. Johnson will tell us.
Q: When you first saw Mr. Winston what did he look like?
A: He was lying on a wheeled gurney. He had blood on his face. He was wheezing. He groaned with pain. His eyes were closed. His breath was irregular.
Q: Doctor Johnson, now I would like you to help us understand Mr. Winston’s condition from a medical point of view. So would you please tell us about your education and background so we can learn your qualifications to do that for us.
You could have asked the expert qualification questions at the outset. You did not. The expert qualification issue will have been resolved in the pretrial order. But you want to let the jury know what those qualifications are. First, however, you must paint enough of the picture—the scene, the point of view, the principal characters, and details. By then, your listeners will care about the characters, who have come alive and are doing their work. Dr. Johnson is a trauma specialist. She knows what to look for and what to do about it. Now is the time to put the details of her word portrait into place, answer by answer.
At the end of direct examination, the jurors will have a realistic, detailed, and evocative picture, built from ordinary words and arranged into declarative sentences: the quiet force of facts.
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