Michael Tigar on Trial Advocacy, Jury Persuasion, and Fighting Injustice | Texas Criminal Defense Podcast
Michael Tigar on Trial Advocacy, Jury Persuasion, and the Duty to Fight Injustice
Few lawyers have influenced modern trial advocacy, constitutional litigation, and human-rights law as profoundly as Michael Tigar.
Over a career spanning decades, Tigar has taught at leading law schools, represented clients in some of the most consequential criminal and political cases in the United States, argued before appellate courts, written extensively about law and justice, and mentored generations of advocates.
Yet in Episode 5 of the Texas Criminal Defense Podcast, what stands out most is not his résumé.
It is his relentless curiosity.
Tigar reads.
He writes.
He teaches.
He continues examining the assumptions behind legal institutions, questioning the exercise of government power, and challenging younger lawyers to become more thoughtful advocates.
Andrew Herreth and Andrew Decker interviewed Tigar during a Texas Criminal Defense Lawyers Association gathering in San Antonio. Although the recorded conversation lasts less than half an hour, it contains lessons on nearly every major aspect of criminal defense practice:
developing a defense theory;
interviewing clients;
conducting an investigation;
presenting an alternative account of the evidence;
selecting jurors;
challenging judicial unfairness;
preserving issues for appeal;
working as a team;
confronting capital punishment;
and continuing to learn throughout an entire career.
The interview is not merely a discussion with a famous lawyer.
It is a compact masterclass in what it means to represent another human being against the power of the State.
A Life Shaped by Books
The episode begins with a theme that continues through the entire conversation:
Reading changes lawyers.
Before the interview even starts, Andrew Herreth notes how many books Tigar mentions in a relatively short discussion. He was writing a book when the hosts arrived. He had recently published another. He maintained a blog and continued reading and writing regularly.
That habit is not incidental to his career.
It is central to it.
Tigar explains that his interest in law began when he was only eleven or twelve years old. He told his father that he thought he might want to become a lawyer.
His father, who had completed only eight years of formal schooling and worked as a union leader, gave him a biography of Clarence Darrow.
The message was simple:
If you are going to become a lawyer, become one who stands with ordinary people.
Tigar later read Darrow’s autobiography and began forming an image of law not merely as a profession, but as a vehicle for opposing injustice.
That early lesson became a foundation for everything that followed.
Clarence Darrow and the Lawyer “For the People”
Clarence Darrow remains one of the most famous trial lawyers in American history.
But the significance of Darrow’s influence on Tigar goes beyond courtroom reputation.
Darrow represented a particular conception of the lawyer’s role.
The lawyer does not exist merely to process cases.
The lawyer challenges power.
The lawyer represents unpopular clients.
The lawyer stands between the individual and institutions capable of imprisonment, execution, economic destruction, or public condemnation.
Tigar’s father wanted him to understand that distinction from the beginning.
A legal career could provide status and financial security.
Or it could provide what Tigar later described as a “ticket to the show”—the ability to step directly into struggles over liberty, justice, and government authority.
The Death Penalty and the Power of Advocacy
Another formative influence came during Tigar’s senior year of high school, when he read Arthur Koestler’s Reflections on Hanging.
The book examined capital punishment and the movement to abolish it.
At the time, California was engaged in intense public debate over executions and death-row cases, including the prosecution of Caryl Chessman.
Tigar read the book from beginning to end.
What affected him was not only the injustice he saw in the death penalty.
He was equally inspired by the lawyers who challenged it.
These advocates did not simply express moral opposition.
They used legal arguments, factual investigation, public advocacy, and institutional pressure to oppose the government’s power to kill.
Tigar began to see that lawyers could do something journalists and historians often could not.
They could enter the courtroom.
They could make the argument.
They could create a record.
They could demand a ruling.
They could intervene before the government acted.
A Ticket to the Show
After college, Tigar worked for Pacifica Radio and served as a European correspondent.
That work allowed him to report on political and legal issues.
He later shared a platform with Sidney Silverman, the British Member of Parliament associated with efforts to abolish capital punishment in the United Kingdom.
The experience sharpened an important distinction.
A journalist could describe injustice.
A historian could explain it.
A lawyer could confront it inside the system.
That realization pushed Tigar toward law school.
He wanted more than the ability to observe events from outside.
He wanted standing.
He wanted the procedural authority to speak for a client, challenge the government, examine witnesses, and ask a court to act.
Law provided that opportunity.
As Tigar puts it, becoming a lawyer gave him a ticket to the show.
Big Cases and Small Cases Are Fundamentally the Same
Michael Tigar has represented clients in extraordinary cases.
But when Andrew Herreth asks whether famous cases are more difficult than ordinary criminal prosecutions, Tigar rejects the distinction in one important respect.
Every case requires the lawyer to understand another person’s reality.
The size of the courtroom may change.
The media attention may change.
The number of lawyers may change.
The duration of trial may change.
But the essential task remains the same:
The defense must develop a truthful, plausible, and human account of what happened.
Tigar acknowledges that lengthy trials can impose enormous physical and emotional demands. He recalls a court-appointed trial that lasted nine months and caused health problems.
That experience reinforces another lesson:
Litigation is a team sport.
No lawyer should attempt a major case without trusted colleagues, investigators, experts, support personnel, and a team capable of sharing the work.
The Defense Must Present an Alternative Reality
Tigar draws upon Italian lawyer and scholar Piero Calamandrei, author of Eulogy of Judges, to explain the defense lawyer’s task.
Imagine placing two painters in the same field.
Each painter stands before an easel.
An hour later, the two paintings look entirely different.
Does that mean one painter falsified reality?
Not necessarily.
Each has observed, selected, interpreted, and emphasized different features of the same scene.
A criminal case works similarly.
The prosecution presents one interpretation of events.
The defense must present another.
That does not mean inventing facts.
It means organizing the evidence into a coherent alternative that the jury can understand.
Defense lawyers often speak about reasonable doubt.
But abstract doubt may not be enough.
Jurors need a plausible account of the case—an alternative reality that explains why the prosecution’s version may be incomplete, unreliable, mistaken, or false.
Reasonable Doubt Needs a Story
Trial lawyers sometimes approach reasonable doubt as a collection of isolated weaknesses.
The officer did not write something in the report.
The witness changed one detail.
The laboratory analysis has a limitation.
The photograph does not clearly show the object.
Each point may matter.
But disconnected attacks can leave jurors with the prosecution’s story still intact.
Tigar’s approach is more demanding.
The defense should help jurors understand what the evidence looks like when viewed from the other side.
That may involve demonstrating that:
a witness had a motive to exaggerate;
an investigator ignored contradictory evidence;
the timeline does not work;
the client’s conduct has an innocent explanation;
the government formed a conclusion too early;
another person had the opportunity or motive;
or the prosecution’s theory depends on assumptions rather than proof.
The goal is not to manufacture certainty.
It is to provide jurors with a coherent framework through which reasonable doubt becomes understandable.
Sit Down and Listen to the Client
Creating that alternative account begins with the client.
Tigar emphasizes that many criminal defendants have never had another person sit with them and listen in genuine detail.
They may have spoken to police officers who assumed guilt.
Family members may be angry or frightened.
Friends may not understand.
Judges and prosecutors may know the client only through a charging instrument, criminal-history report, or police narrative.
The defense lawyer must do something different.
Sit down.
Listen.
Ask questions.
Give the client enough time to explain the events, relationships, history, and circumstances surrounding the accusation.
This is not merely an act of compassion.
It is investigation.
The client often knows facts no police report contains.
Names of witnesses.
Locations.
Prior conflicts.
Messages.
Photographs.
Routine behavior.
Reasons an accusation may have been made.
Details that initially appear irrelevant can later become central to the defense.
Rapport and Skepticism Must Coexist
Listening does not require blind acceptance.
Tigar explains that lawyers need rapport with their clients, but they also need skepticism.
The client must feel comfortable enough to speak candidly.
At the same time, the lawyer must test what the client says.
Memory is imperfect.
People omit facts.
They misunderstand events.
They remember details in ways shaped by fear, shame, trauma, loyalty, anger, or self-protection.
Tigar invokes William Wordsworth’s observation that memory is partly what people remember and partly what they create.
That does not mean clients necessarily lie.
It means memory is human.
A good lawyer listens carefully and then checks.
Dates should be verified.
Witnesses should be located.
Records should be obtained.
Statements should be compared.
Physical evidence should be examined.
The lawyer’s relationship with the client begins the investigation; it does not replace it.
“Get Yourself a Witness”
Tigar recounts a story associated with renowned trial lawyer Edward Bennett Williams.
As a young attorney, Williams reportedly entered the courthouse carrying an enormous stack of law books. This was an era before digital research and routine photocopying, so lawyers physically hauled authorities into court.
An experienced courthouse observer saw him and offered blunt advice:
Throw away the books.
Get yourself a witness.
The point is not that legal research does not matter.
Tigar’s entire career demonstrates the opposite.
The lesson is that cases turn on facts.
A brilliant legal theory cannot substitute for the witness who saw the event, the document that disproves the timeline, or the investigator who finds the evidence police overlooked.
Lawyers must know the law.
But they must also investigate the world.
Investigation Can Change the Entire Case
Andrew Decker responds with an example from his own practice.
A young man was charged with aggravated assault, a serious felony carrying the possibility of years in prison.
Decker was retained shortly after the alleged event and immediately hired an investigator.
Within four days, the defense had collected more witness statements than the police.
Those witnesses fundamentally changed the case.
The felony charge was reduced.
The remaining misdemeanor was later dismissed.
The prosecutor eventually agreed that the client could obtain an expunction without opposition.
The result did not come from a dramatic courtroom speech.
It came from acting quickly, listening to the client, hiring an investigator, and finding witnesses before memories disappeared.
The story perfectly illustrates Tigar’s point.
Get yourself a witness.
Speed Matters
Criminal investigations are time-sensitive.
Surveillance video may be overwritten.
Text messages may be deleted.
Physical locations may change.
Vehicles may be repaired.
Witnesses may forget details.
Employees may leave businesses.
Social-media posts may disappear.
The State begins investigating immediately.
The defense cannot assume the police will identify and preserve every fact favorable to the accused.
That is why early defense investigation matters so much.
An investigator who begins work days after an accusation may find evidence unavailable months later.
The difference between immediate investigation and delayed investigation can be the difference between dismissal and conviction.
Responding Before the Government Controls the Narrative
Tigar offers another example involving Congressman Ron Dellums.
Tigar learned that Attorney General Edwin Meese was reportedly preparing to publicly accuse Dellums of drug dealing from his congressional office.
The defense did not wait for the accusation to air.
Investigators immediately went to work.
Before the government appeared on national television, Tigar and the defense team had assembled a response.
Tigar then confronted the gathered press and denied the accusation.
His memorable phrasing captured both indignation and strategy:
The defense denied the allegations and despised the accusers.
The episode demonstrates the importance of speed and narrative control in high-profile cases.
Once the government announces an accusation, the public may treat it as established fact.
Defense lawyers must sometimes investigate and respond before the State’s version hardens into conventional wisdom.
The First Story Is Not Always the True Story
Police reports often become the default account of a criminal case.
Prosecutors read them.
Judges review them.
Bond officers summarize them.
News organizations repeat them.
But a police report is not neutral reality.
It is one person’s selection and organization of facts, often based on incomplete information gathered during the earliest stage of an investigation.
Tigar’s approach reminds defense attorneys that the State’s story is only one painting of the field.
The defense must examine what the government left outside the frame.
Who was not interviewed?
What evidence was not collected?
Which assumption shaped the investigation?
When did officers decide who they believed?
Did later evidence get interpreted to support that conclusion?
The defense lawyer’s job is to turn the canvas around and show the jury the other side.
Opening Statement: Show the Jury Both Sides
Tigar discusses the opening statements he and Ron Woods delivered in the prosecution of Terry Nichols.
The government had spoken first.
By the time the defense rose, jurors had already heard a powerful account of catastrophic violence and were naturally looking toward the accused with suspicion.
The defense needed to interrupt that psychological momentum.
Tigar describes beginning with a simple physical demonstration.
He showed the jury one side of his hand.
Then he turned it over.
The jurors could not truly say they had seen the whole hand until they saw both sides.
That demonstration communicated the defense’s central request:
Do not decide after hearing only the prosecution.
Wait.
Look at the evidence from both directions.
Listen to the defense investigation.
Then determine what has actually been proven.
Opening Statement Is More Than a Preview
An effective defense opening should do more than tell jurors what witnesses may say.
It should change how they listen.
The prosecution wants jurors to interpret every later fact through a presumption of guilt.
The defense must provide a competing framework before the evidence begins.
Tigar’s hand demonstration works because it is simple.
Jurors immediately understand it.
There are two sides.
They have heard only one.
The defense is not asking for sympathy.
It is asking for patience and intellectual fairness.
That is the beginning of reasonable doubt.
Communication Runs in Both Directions
Tigar emphasizes that courtroom communication is not merely the lawyer speaking.
It is a relationship between the speaker and the listener.
A trial lawyer must understand the jury.
That process begins during voir dire.
Jurors enter the courtroom with experiences, values, habits, fears, loyalties, and prejudices.
A lawyer who ignores those qualities is not communicating.
The lawyer is delivering words without understanding how they will be received.
Tigar’s approach requires attention.
Look jurors in the eye.
Listen to how they answer.
Observe what they emphasize.
Understand what they care about.
Then explain the case in a way that connects with their actual methods of decision-making.
What Does the Juror Do When Decisions Matter?
Tigar offers a practical voir dire technique.
Do not ask only what jurors believe in the abstract.
Ask how they make important decisions.
Consider a high-school teacher responsible for supervising a study hall.
Two students fight.
How does the teacher decide who started it?
Does the teacher listen to both students?
Interview witnesses?
Rely on reputation?
Assume the larger student was the aggressor?
Punish both?
The answer reveals more than whether the person claims to be fair.
It shows the process the juror uses when facts are disputed.
The same method can be applied to people from other professions.
Ask a human-resources professional how they decide whether to terminate an employee.
Ask a physician how they choose between competing diagnoses.
Ask a manager how they evaluate conflicting employee accounts.
Ask a parent how they resolve disputes between children.
The goal is to uncover the juror’s decision-making habits.
Bias Often Appears Through Process
Jurors rarely announce that they are unfair.
Many sincerely believe they can be impartial.
But their decision-making processes may reveal assumptions that matter enormously in a criminal trial.
A person may always trust authority figures.
Another may believe innocent people never speak to police without lawyers.
Someone may assume people charged with crimes probably did something wrong.
A juror may require defendants to explain themselves even while claiming to accept the presumption of innocence.
Tigar’s questions allow these biases to emerge naturally.
Rather than asking, “Can you be fair?” the lawyer asks, “How do you decide?”
The answer provides far more useful information.
The First Half of a Larger Lesson
The first portion of Michael Tigar’s interview reveals a consistent philosophy.
Read deeply.
Listen carefully.
Investigate immediately.
Find witnesses.
Understand the client’s world.
Create a coherent alternative account.
Learn how jurors make decisions.
And never assume the government’s first version of events is the only version worth hearing.
These lessons apply whether the case attracts international attention or appears on a routine county-court docket.
Every case begins with a person facing the organized power of the State.
Every defense requires the lawyer to turn over the hand and show the other side.
Why Michael Tigar Keeps Working
At the time of the interview, Michael Tigar was seventy-eight years old.
He had already built a career that most lawyers could only imagine.
He had tried major cases.
Argued appeals.
Taught at some of the nation’s most respected law schools.
Written books.
Mentored advocates.
Spoken publicly about civil liberties, human rights, capital punishment, and the abuse of government power.
He had every right to retire.
Andrew Decker asks the natural question:
What still gives him the fire to get up, write, teach, blog, and remain engaged?
Tigar’s answer is both candid and instructive.
He chose this way of living.
He learned how to do the work.
He cares about the thing the legal system calls justice, even while recognizing that the institutions using that word often fall far short of it.
And, quite simply, he enjoys advocacy.
The Pleasure of Winning a Case
Tigar remembers winning a not-guilty verdict in the first case he ever tried.
The experience taught him that courtroom advocacy could be exhilarating.
He recalls the observation of Jimmy Robertson, who later served on the Mississippi Supreme Court, that there is no pleasure quite like “cheating the hangman.”
The phrase captures something central to criminal defense.
A defense victory is not merely a professional accomplishment.
It may mean preventing an unjust imprisonment.
Stopping an execution.
Preserving a family.
Protecting a person from a wrongful conviction.
Exposing government misconduct.
For defense lawyers, the stakes are rarely abstract.
The outcome changes a human life.
Knowing When Not to Take the Case
Tigar’s answer also contains an important lesson about professional judgment.
He acknowledges that trial work is physically and mentally demanding.
Age matters.
Health matters.
Stamina matters.
A lawyer may retain decades of knowledge and judgment while no longer possessing the endurance required for a lengthy capital trial.
Tigar explains that he would not accept a new capital jury trial at that stage of his life.
He might remain comfortable handling an appellate argument, consulting, writing, or assisting other lawyers.
But a capital trial is different.
A mistake could contribute to another person’s death.
The question is not simply whether the lawyer believes he can perform the work.
It is whether he can perform every part of it at the level the client deserves.
That humility is itself a form of professional excellence.
Confidence Is Not the Same as Capacity
Experienced lawyers often build strong confidence.
They have seen difficult cases.
Handled hostile judges.
Cross-examined experts.
Made arguments under pressure.
Confidence helps them act decisively.
But confidence can become dangerous when it prevents honest self-assessment.
Tigar distinguishes between believing he still understands trial advocacy and recognizing the physical demands of a capital case.
A lawyer must evaluate:
the expected duration of trial;
the complexity of the evidence;
personal health;
available support;
the reliability of the trial team;
the consequences of error;
and the ability to maintain judgment under prolonged pressure.
Knowing when to step back does not diminish a lawyer’s legacy.
It protects the client.
Capital Cases and Irreversible Error
Tigar asks a haunting question:
If he made a serious mistake in a capital case, to whom would he address his regrets?
The dead cannot benefit from an apology.
An execution cannot be reversed.
A posthumous declaration of error cannot restore a life.
This irreversible quality distinguishes capital punishment from every other criminal sanction.
Prison terms can sometimes be corrected.
Convictions can be reversed.
Defendants can be released.
Compensation may be available, however inadequate.
Execution eliminates every possibility of meaningful correction.
That reality helps explain why Tigar’s opposition to the death penalty remains so forceful.
What the Supreme Court Gets Wrong
Andrew Herreth asks Tigar whether the United States Supreme Court has decided an important issue incorrectly in recent years.
Tigar does not need to look far into the past.
He points to the Court’s recent treatment of death-penalty litigation, especially disputes involving execution methods and last-minute efforts to prevent unconstitutional executions.
He criticizes opinions suggesting that condemned prisoners must propose alternative methods of execution when challenging the State’s chosen procedure.
He also condemns judicial rhetoric portraying last-minute stay applications as unfair to victims’ families.
In Tigar’s view, that approach treats finality and vengeance as more important than lawful process.
The Problem with Shifting the Burden
When a person argues that a method of execution would inflict unconstitutional suffering, requiring that person to design an acceptable alternative distorts the constitutional inquiry.
The State has chosen to execute.
The State has selected the method.
The State controls the prison, personnel, drugs, equipment, and procedures.
Yet the burden may be shifted toward the condemned person to identify a different means of dying.
Tigar sees that reasoning as both morally troubling and legally evasive.
The Constitution is supposed to restrict government conduct.
It should not require the person facing death to help the government develop a constitutionally preferable execution plan.
Victims’ Families and the Risk of Vengeance
Tigar is also deeply critical of decisions emphasizing the emotional interests of victims’ families when reviewing last-minute capital litigation.
The pain experienced by surviving family members is real.
Their suffering should not be minimized.
But criminal courts do not exist to translate grief directly into punishment.
The legal process must remain governed by constitutional standards, statutory rules, reliable evidence, and individualized judgment.
Tigar warns that elevating demands for emotional closure can move the system dangerously close to mob rule.
When courts begin treating continued litigation as an injustice to victims, they risk portraying procedural rights as illegitimate obstacles rather than essential safeguards.
Anger Cannot Replace Legal Judgment
Tigar remembers addressing the emotional atmosphere during the Terry Nichols case.
He described himself as trying to turn back a tide of anger and vengeance.
That is often the defense lawyer’s task in a serious case.
The public may be enraged.
The facts may involve terrible loss.
The accusation may be associated with fear, trauma, or national grief.
Yet the defendant remains entitled to a fair trial.
The prosecution must still prove its case.
The jury must still distinguish evidence from emotion.
The judge must still enforce the law.
Constitutional guarantees are not reserved for calm cases involving sympathetic defendants.
They matter most when anger is strongest.
A Court Must Listen Before It Decides
Tigar’s broader concern is not confined to any single death-penalty opinion.
He worries about judges who appear impatient with advocacy itself.
The lawyer’s role depends on the belief that courts will listen before deciding.
A justice may ultimately reject the argument.
But the argument must be treated as legitimate.
When courts characterize defense filings as obstruction, delay, manipulation, or disrespect toward victims, they undermine the adversarial process.
Lawyers cannot fulfill their duties when judges treat zealous representation as an abuse merely because it complicates punishment.
Tigar describes this as a perilous moment.
The work of lawyers is endangered when those responsible for deciding cases become hostile to being persuaded.
The Role of Courts During Executive Overreach
Tigar also places the judiciary within a larger constitutional structure.
When executive power expands aggressively, courts must become more vigilant, not less.
Police, prosecutors, prison officials, immigration authorities, and administrative agencies all exercise forms of executive power.
The judiciary is supposed to review that power.
It must ask whether officials acted lawfully.
Whether rights were respected.
Whether evidence was obtained constitutionally.
Whether procedures were fair.
Tigar expresses concern about courts failing to perform that checking function at precisely the time it is most necessary.
A court that simply ratifies executive action is not functioning as an independent branch.
What Young Lawyers Can Do
The hosts ask what lawyers working in trial courts can do when appellate courts seem committed to affirming convictions and narrowing constitutional protections.
Tigar’s answer is simple:
Keep fighting.
Call unfairness what it is.
Stand up.
Say it.
Preserve the issue.
Build the record.
Do not become so accustomed to adverse rulings that you stop objecting.
Do not allow judicial irritation to silence necessary advocacy.
History celebrates lawyers who were sometimes held in contempt because they were willing to challenge authority.
That does not mean lawyers should be theatrical or disrespectful for its own sake.
It means professional courage sometimes requires direct confrontation.
Asking a Judge to Apologize
Tigar illustrates the point with a story from jury selection in the Terry Nichols case.
During individual voir dire, he questioned a prospective juror who expressed interest in whether technology could determine if witnesses were telling the truth.
Tigar explored the answer because it revealed how the juror thought about credibility and decision-making.
The judge interrupted.
He dismissed the topic as nonsense and stopped the questioning.
After the prospective juror left, Tigar stood and directly challenged the judge.
He asked the court to bring the juror back.
He argued that the judge’s tone and remarks had been inappropriate.
He asked the judge to apologize both to the prospective juror and to him in the juror’s presence.
The judge became visibly angry and left the bench.
Ten minutes later, he returned and apologized.
Why the Challenge Worked
Tigar does not tell the story simply to portray himself as fearless.
He explains the strategic reason the judge responded.
Tigar had placed the issue on the record.
The judge understood that his intervention could later become part of an appeal.
An appellate court might examine whether the trial judge improperly restricted voir dire, embarrassed counsel, influenced a juror, or signaled hostility toward the defense.
Correcting the problem immediately was safer than leaving it unresolved.
The lesson is practical:
Judges may ignore informal complaints.
A precise objection on the record changes the calculation.
The Record Is the Lawyer’s Protection
Trial lawyers frequently know that something improper has happened but fail to articulate it clearly.
They may hope the judge understands.
They may discuss the issue off the record.
They may complain in the hallway.
None of that preserves error.
The record must show:
what happened;
why it was improper;
what relief the defense requested;
how the court ruled;
and, when necessary, what evidence or questioning the defense was prevented from presenting.
A reviewing court cannot correct what the record does not reveal.
Tigar’s confrontation with the judge worked because it was not merely emotional.
It was legally useful.
Judicial Courtesy Does Not Require Submission
Lawyers should treat judges professionally.
But professionalism does not require passivity.
A lawyer’s obligation is to the client and the integrity of the proceeding.
When a judge interferes unfairly, limits lawful questioning, signals partiality, or humiliates a participant, the lawyer may need to respond firmly.
The goal is not personal victory over the judge.
It is ensuring that the courtroom remains fair.
Tigar’s example shows that respectful confrontation can improve the proceeding rather than destroy it.
Law Clerks Have Not Yet “Gotten Used to Things”
Tigar also offers encouragement for appellate lawyers.
Even when judges appear resistant, appellate briefs are often first read by law clerks.
He references G.K. Chesterton’s observation that judges are not necessarily cruel; they simply become accustomed to things.
Law clerks may not yet have become accustomed to routine injustice.
They may still be disturbed by facts that experienced institutional actors have learned to normalize.
A carefully written brief can reach that reader.
It can expose the human stakes.
It can make an issue difficult to dismiss.
It can influence the questions asked in chambers and the analysis ultimately presented to the judge.
Lawyers Must Keep Doing the Work Better
Tigar does not promise that persistence always produces victory.
It does not.
Some judges will reject the argument.
Some appellate courts will affirm.
Some injustices will remain uncorrected.
But lawyers must continue improving the quality of their work.
The investigation must become more thorough.
The objection more precise.
The brief clearer.
The narrative more compelling.
The record more complete.
The argument more historically grounded.
The fact that courts sometimes fail does not relieve lawyers of the duty to give them the opportunity to act correctly.
Small Acts of Advocacy Change the Law
Andrew Decker reflects that the everyday details matter.
Tigar responds with a historical example involving prosecutions of people who refused induction into the armed forces during the Vietnam War.
In the late 1960s, conviction rates were high and prison sentences severe.
Several years later, conviction rates had fallen significantly, and average sentences had become shorter.
Part of that shift reflected growing public opposition to the war.
But organized legal work also mattered.
Lawyers trained one another.
They developed arguments.
They learned how to present recurring issues.
They coordinated strategies.
They challenged doctrines that had previously seemed settled.
Repeated advocacy changed outcomes.
Law Changes Through Accumulated Resistance
Major legal change rarely begins with one dramatic case.
It often emerges from hundreds of lawyers making similar objections.
One lawyer challenges a jury instruction.
Another develops a better evidentiary record.
Someone writes a stronger appellate brief.
A training program teaches the issue statewide.
Courts begin seeing the same problem from multiple jurisdictions.
Judges realize the old rule is producing injustice.
The legal culture changes.
Tigar’s historical example demonstrates that lawyers should not underestimate the cumulative force of persistent advocacy.
A single objection may appear unsuccessful.
A generation of well-developed objections can transform doctrine.
A Supreme Court Victory After Prior Rejection
Tigar recalls that the first case he argued before the United States Supreme Court involved an issue the Court had rejected only a few years earlier.
Yet his case produced a decisive victory.
The lesson is not that precedent can be ignored.
It is that legal doctrine is not always as fixed as it appears.
Facts change.
The composition of the Court changes.
Historical circumstances change.
Arguments improve.
Earlier decisions reveal weaknesses.
A position dismissed in one era may become persuasive in another.
Lawyers must know the precedent while remaining willing to challenge it.
The One Change Tigar Would Make
Near the end of the interview, Andrew Decker asks what single legal reform Tigar would enact if given the authority.
Tigar answers without hesitation:
Abolish the death penalty.
His opposition is not based on only one concern.
He describes capital punishment as inherently savage and unjust.
He also argues that the pursuit of death sentences distorts nearly every stage of the criminal process:
investigation;
trial;
jury selection;
closing argument;
sentencing;
direct appeal;
post-conviction litigation;
executive clemency;
and methods-of-execution disputes.
Capital Punishment Distorts the System
Death cases operate differently from other prosecutions.
Jury selection becomes heavily focused on death qualification.
Victim-impact evidence can intensify emotional pressure.
Prosecutors may frame mercy as weakness.
Defense lawyers must investigate years of mitigation evidence.
Procedural defaults can prevent review of serious errors.
Courts become preoccupied with finality.
Execution dates create emergency litigation.
The punishment does not merely add another sentencing option.
It reshapes the entire case.
Tigar believes few features of the criminal legal system have done more damage to the ideals of fair and enlightened law enforcement.
The Myth of Finality
Capital punishment also exposes a recurring conflict between accuracy and finality.
Courts often emphasize the need for litigation to end.
But an execution is not merely the end of litigation.
It is the end of the person.
Claims involving innocence, ineffective assistance, suppressed evidence, racial discrimination, juror misconduct, intellectual disability, or unconstitutional execution methods cannot be dismissed simply because they arrive late.
When the punishment is irreversible, the demand for finality must remain subordinate to the demand for legality.
Reading as a Professional Discipline
The episode concludes by returning to books.
Tigar names Belgian singer-songwriter Jacques Brel as a favorite musician.
When asked about books, he discusses his recently published work, Mythologies of State and Monopoly Power, which examines the narratives human-rights lawyers confront when challenging powerful institutions.
He also references his memoir, Fighting Injustice, and mentions working on a new edition because, as he jokes, he lived longer than expected.
The humor is memorable.
So is the larger point.
Tigar continues to read because advocacy requires intellectual renewal.
Lawyers Cannot Stop Learning
Law changes.
Technology changes.
Government tactics change.
Scientific evidence changes.
Public attitudes change.
A lawyer who relies entirely on knowledge acquired years earlier will eventually become ineffective.
Reading develops more than legal knowledge.
It supplies history, metaphor, psychology, philosophy, language, and perspective.
Tigar’s references range across lawyers, poets, historians, judges, political figures, musicians, and writers.
Those materials enrich how he understands clients and communicates with jurors.
The strongest advocates often read far beyond case law.
Writing Clarifies Thought
Tigar also continues writing.
Books and blog posts require him to organize ideas, test claims, and explain complicated issues.
Writing forces precision.
A lawyer may believe an argument is persuasive until attempting to put it into clear sentences.
Weaknesses become visible.
Assumptions appear.
Missing evidence becomes obvious.
Regular writing therefore improves oral advocacy as well.
A lawyer who can explain a case clearly on paper will usually present it more clearly in court.
The Example He Sets
After the interview, the hosts explain that meeting Tigar changed their own habits.
Andrew Decker says he began consciously reading more.
The discussion with Tigar, Michelle Ochoa, and Gerry Goldstein within a short period reinforced the same lesson:
Experienced lawyers remain students.
They do not assume that years of practice eliminate the need to learn.
They keep reading statutes.
Cases.
History.
Trial techniques.
Literature.
Biographies.
Political theory.
The habit is not academic decoration.
It improves representation.
Conclusion
Michael Tigar’s interview offers a vision of criminal defense grounded in preparation, courage, imagination, and lifelong learning.
His advice begins with the client.
Sit down.
Listen.
Develop trust.
Then investigate.
Test memory.
Find witnesses.
Do not accept the police report as the entire truth.
Do not rely on reasonable doubt as an abstract slogan.
Build a coherent alternative account that jurors can understand.
Show them both sides of the hand.
His approach to voir dire is equally practical.
Ask jurors how they make decisions when facts are disputed.
Their methods often reveal more than their promises to remain fair.
Learn whether they listen to both sides, defer automatically to authority, rely on reputation, or demand proof before acting.
Tigar’s lessons also extend beyond technique.
Lawyers must be willing to confront unfairness.
They must object.
Preserve the record.
Ask for relief.
Challenge judges professionally when necessary.
Continue making arguments even when appellate courts appear hostile.
Legal change occurs because advocates repeatedly identify injustice and refuse to normalize it.
His opposition to capital punishment reflects the same philosophy.
The death penalty is not simply another sentencing provision.
It distorts trials, appeals, post-conviction review, and the role of courts.
It makes error irreversible and encourages legal institutions to value finality over justice.
Most importantly, Tigar demonstrates that a great legal career does not end with accumulated knowledge.
It continues through curiosity.
Reading.
Writing.
Teaching.
Questioning.
He remains engaged because he chose advocacy as a way of living.
For younger lawyers, the message is clear:
Read more.
Investigate sooner.
Listen better.
Build the record.
Stand up.
And keep fighting.
Key Takeaways
Michael Tigar’s commitment to advocacy began with reading about Clarence Darrow and lawyers who used the law to represent ordinary people against powerful institutions.
Big cases and ordinary cases share the same essential task: understanding the client and presenting a credible alternative account of the evidence.
Reasonable doubt is more persuasive when the defense gives jurors a coherent framework through which to understand the weaknesses in the prosecution’s story.
Lawyers must listen carefully to clients while maintaining enough skepticism to verify memories, timelines, witnesses, and physical evidence.
Early investigation can determine the outcome of a case because witnesses disappear, memories fade, and electronic or physical evidence may be lost.
Tigar’s practical advice is to “get yourself a witness”: legal research matters, but facts and investigation frequently decide cases.
An effective opening statement should change how jurors listen to the evidence, not merely summarize anticipated testimony.
Voir dire should explore how jurors actually make important decisions rather than relying on generic questions about whether they can be fair.
Litigation is a team sport, especially in lengthy or complex cases, and lawyers must honestly evaluate whether they possess the health, stamina, and support necessary to accept a case.
Capital punishment is uniquely dangerous because errors cannot be corrected after an execution.
Courts risk undermining justice when they treat defense litigation as improper delay or elevate emotional demands for vengeance over constitutional review.
Trial lawyers must call unfairness what it is, make precise objections, request relief, and preserve a complete record for appellate review.
Professional respect for judges does not require silence when the court acts improperly.
Persistent advocacy can change legal outcomes over time, even when individual objections initially fail.
Tigar would abolish the death penalty because he views it as savage, unjust, and destructive to the fairness of the entire criminal legal system.
Lifelong reading and writing are not optional habits for great lawyers; they deepen judgment, sharpen communication, and prevent professional stagnation.
Criminal defense requires lawyers to keep learning, keep investigating, keep challenging power, and keep fighting even when the courts appear resistant.