John French Sloan and the Word Pictures in Your Case

• Author: Michael E. Tigar
• Position: The author, a former chair of the Section of Litigation, has been a trial lawyer and law teacher for more than 50 years. His latest book is Mythologies of State and Monopoly Power (Monthly Review Press 2018).
• Pages: 62-63

Litigator’s Muse

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 62

MICHAEL E. TIGAR

The author, a former chair of the Section of Litigation, has been a trial lawyer and law teacher for more

than 50 years. His latest book is Mythologies of State and Monopoly Power (Monthly Review Press 2018).

John French Sloan was a 20th-century art-

ist, 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 read-

ing 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 prepar-

ing 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 ju-

rors. They will interpret words based on

the cultural, social, and personal experi-

ences that they bring to the process. Each

juror who hears “the pediatrician exam-

ined Joey Johnson” has a different pic-

ture: Is the pediatrician male or female?

What does “examine” mean? And so on.

Language is not universal. If it is impor-

tant 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 wit-

ness 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 some-

thing 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 wit-

ness 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 at-

tention. 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?

A: Yes.

You have been to the hospital—a non-

delegable duty if you are trial counsel. You

JOHN FRENCH SLOAN

AND THE WORD

PICTURES IN YOUR CASE