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A Review of His New Memoir, Fighting Injustice


Friday, May 24, 2002

Michael E. Tigar, Fighting Injustice (American Bar Association 2002)

Ask America's top litigators to name their best and brightest, and attorney Michael Tigar will be at the top of the list. Known for his mesmerizing courtroom presence and peerless trial preparation, Tigar has represented many controversial clients, among them Terry Nichols, whose life he convinced a jury to spare in the Oklahoma City bombing trial, John Demjanjuk, Angela Davis, John Connally, Kay Bailey Hutchison, and members of The Chicago Seven. Yet in the course of his career, Tigar also has stood beside scores of other lesser-known individuals who, according to Tigar, were victims of various types of governmental overreaching or illegality.

A Sense of Injustice Rooted in Childhood and Developed At Berkeley

Afraid of becoming a "well-to-do and skilled, but irrelevant, lawyer," Tigar has taken on issues he could embrace with "passion"--among them civil rights, the draft, free speech, government surveillance, the death penalty, and international human rights. His career has been marked by a sense of the injustice perpetrated by governments against citizens, a desire to "look at what needs correcting," and a mission to change the law and the administration of justice.

Tigar grew up in Glendale, California, where his father was active in the machinists' union and his mother, at her young son's request, volunteered as a community political canvasser. When he announced at the age of 11 or 12 that he wanted to be a lawyer, his father gave him Irving Stone's biography of Clarence Darrow, Clarence Darrow for the Defense, and encouraged him to be "that kind of lawyer." There can be little question that Tigar met that challenge.

In 1958, Tigar entered the University of California at Berkeley. There, his world view began to take shape; it was defined by the civil rights movement, and by opposition to McCarthyism, capital punishment, and American military policy in Vietnam. Tigar was active in free speech and anti-war movements.

During a two-year stint as a radio reporter, Tigar recalls, he was "radicalized" by what he learned about domestic and foreign politics. As a result, he set his sights on the law, compelled by a single-minded purpose: to influence events. He entered Boalt Hall, Berkeley's law school, in 1963.

At the time, first year law students were asked to sign a state bar form which, among other things, questioned whether the applicant had been affiliated with any organization that advocated the overthrow of the government. Tigar was offended by this thinly veiled attempt to extract a loyalty oath.

After he obtained signatures from a third of the first year students that they would not sign the form, Tigar asked civil procedure professor Geoffrey Hazard whether he agreed that the question was unconstitutional under a 1961 Supreme Court decision. Hazard not only agreed, but called the general counsel of the California Bar. The question was deleted.

Meanwhile, a friend challenged Tigar by noting that, given his penchant for radicalism, the only way he would be taken seriously as a law student was to be first in his class. Tigar did just that--all three years of law school - and became editor-in-chief of the law review besides. Tigar too modestly credits these accomplishments not to intellectual brilliance, but to extremely hard work.

Too Much for the Supreme Court, But Not For Edward Bennett Williams

Tigar's response tells much about his character. Rather than blasting Brennan, he understood the pressures Brennan was under, refused to take it personally, and maintained a cordial relationship with Brennan until Brennan's death.

Rebuffed by the Supreme Court, Tigar was hired by Edward Bennett Williams, a partner in DC's highly regarded firm of Williams & Connolly. There Tigar got a glimpse of the glamorous side of practicing law while on the defense team for Bobby Baker. Though appreciating the "best possible practical legal education" he was getting, the high life of Williams and his coterie left Tigar cold.

His first case on his own, outside the Williams firm but with Williams's approval, was the pro bono defense of a young black man charged with carrying a dangerous weapon. The prosecutor was Robert Bennett - who later became President Clinton's counsel in the Paula Jones matter and, of late, counsel to Enron.

Tigar won the case, and thereafter developed a practice focusing on civil rights, the Fourth Amendment, and selective service law. The radical law student had morphed into a radical lawyer - and Tigar's memoir of his radical youth similarly segues into a fascinating melange of stories and guidance for current and would-be trial lawyers.

Not Just War Stories, But Practical Tips For Trying Cases

Tigar's legendary courtroom narrative skills are in evidence here, and readers who enjoy war stories from the front lines of litigation won't be disappointed.

But there is more here than tales and anecdotes. While the first three chapters of the book provide a chronological framework for Tigar's life and work, the remaining text is organized thematically, according to broadly defined issues like free speech, the death penalty, and government surveillance. Tigar offers valuable mini-treatises on topics such as the constitutional separation of powers as it relates to waging war (the subject of his law school valedictory address), selective service law, wiretapping legislation, and habeas corpus.

The book is also generous with tips for trying cases: Given a choice, advance a theory of your case that is the least contradictory to that of your opponent, Tigar advises. Make objections in a way that minimizes disruption to the trial process. Be judicious in the use of rhetorical and argumentative techniques.

Tigar also offers tips for dealing with the media - don't try your case to them - and dealing with clients - maintain a healthy skepticism about their versions of events.

Tigar explains that he reads every relevant case and its annotations in search of analogies that might be useful in creating a theory of a case or crafting a persuasive argument. The Tigar method includes placing cases in their historical and political frameworks, and enlivening the legal analogies drawn from close case study with examples from his encyclopedic knowledge of history, literature, music, and religion.

The Terry Nichols Trial and Beyond

Especially interesting is Tigar's insight into his representation of Terry Nichols for his role in the Oklahoma City bombing. At least one of the reasons for Tigar's welcoming Judge Richard Matsch's appointment to defend Nichols is his personal opposition to the death penalty. "I have thought that in a well-tried capital case jurors might turn towards life when they saw the human side of capital punishment up close," he remarks in the book. "And if we can begin convincing jurors to vote for life, may be we can influence prosecutors not to seek death. At least, I thought, this would be so in a publicized case."

Indeed, there was substantial publicity - and, in some quarters, outrage - over the jury's deadlock on whether Nichols had the intent to cause death, which under the law was a prerequisite to recommending a death sentence. The result of the impasse was that Judge Matsch had no option but to sentence Nichols to life in prison - a significant victory for Tigar and his client.

Fighting Injustice includes portions of Tigar's summation to the jury, in which he reminded jurors that every world religion teaches forgiveness and redemption. He urged them to transcend vengeance and look toward the future - not to denigrate the suffering of the victims' families, but to get beyond it.

After the Nichols case, Tigar is said to have wondered if there was another major trial left in him. Yet one can't imagine that Michael Tigar will be leaving the courtroom anytime soon. Currently, Tigar is a professor at American University's Washington College of Law, where he leads seminars in human rights impact litigation, and mentors students to aspire to a life in the law that consists of more than six figure incomes and the obligation to generate thousands of billable hours yearly. He also travels across the country teaching capital defense and other litigation skills, and tries cases here and abroad.

Fighting Injustice tells stories and teaches. But it also preaches. "There is a world to be understood, and more important, to be changed," Tigar admonishes. He challenges lawyers to move beyond the "search for precedent and rules" and to commit themselves to bringing justice to a world where injustice abounds.

Elaine Cassel practices in Virginia and teaches law and psychology online and in traditional settings. She writes and delivers continuing legal education courses in Internet law, privacy, genetics, and health law and is the author of Criminal Behavior (Allyn & Bacon, 2001). She is Vice Chair of the Behavioral Sciences Committee of the ABA Science and Technology Law Section and Co-Vice Chair of the Section's Genetic Research and Testing Committee.

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