James McNeill Whistler was a great artist. His painting popularly known as Whistler's Mother (1871) is probably second to Mona Lisa as the most recognized painted woman.

American-born in 1834, art student in Paris in 1855, a time when a painter was judged by the ability to represent and reproduce reality, to copy nature. But as newly invented photography became popular, Whistler became committed to rescuing the canvas from the camera, which obviously produced a realistic image faster and cheaper.

So Whistler was an early explorer of the idea of "art for art's sake," seeking a new aesthetics focused on the plastic elements of painting: line, form, and color, and relationships between them. He explicitly told us this by titling his mother's portrait Arrangement in Gray and Black. His mother is the subject of the painting, but so also its plastic elements, which are objects for us to contemplate, existing by themselves as expressive means.

While Whistler never painted pure abstraction, in 1875 he painted the far more nonrepresentational Nocturne in Black and Gold: The Falling Rocket. It was a bold statement that the drama of the painting is in the paint.

Enter John Ruskin, chief connoisseur and critic of English art and taste. Reviewing an exhibition in London where Nocturne was shown, Ruskin accused Whistler in print on July 2, 1877 of "flinging a pot of paint in the public's face."

Whistler consulted with his solicitor (an advisor who represents clients in lower courts and prepares a case for a barrister to try in higher courts), who served a Writ of Summons for Libel on Ruskin on August 8. The Writ demanded that Ruskin or his representative appear in the High Court of Justice, Queen's Bench Division, in eight days, plus damages of a thousand pounds, equivalent today to about $120,000. See "A Pot of Paint: Aesthetics on Trial in Whistler v. Ruskin" by Linda Merrill, Smithsonian Institution Press, 1992. Whistler's motivation to bring suit, like many plaintiffs today, included financial problems, a self-righteous certainty of success, and a pugnacious personality (like Ruskin), that was reflected in the title of his book, The Gentle Art of Making Enemies!

Ruskin's solicitor timely appeared in court and announced Ruskin would likely defend pro se. On November 2, Whistler filed his Statement of Claim (our Complaint) quoting Ruskin's alleged libelous statement (satisfying the specificity requirement of CPLR 3016(a)), and asserting he was damaged, but not citing any specific example.

Ruskin's Statement of Defense (our Answer) served on December 6, asserted the criticism was privileged because Whistler publicly exhibited the painting and consequently could prevail only if he proved malicious intent.

Trial was repeatedly postponed due to Ruskin's health, documented by his physician. Finally, on Nov. 25, 1878, the case was called. Ruskin was represented by the Attorney General of England, who prior to 1895 was allowed to have a private practice to supplement his public salary! Ruskin, as was his right, did not appear.

Both sides agreed to a "special jury," customary in 19th century English libel suits, composed of so-called better educated men who would understand the particularities of libel law.

Whistler's counsel prepared written statements of fact for each witness (satisfying disclosure requirements of CPLR 3101(d)(1)(i)). Three painters testified for Whistler; all, reportedly, were unimpressive and didn't help his case.

The defense also called three witnesses: two painters and a part time art critic who was a well-known playwright. As expected, they testified Nocturne had little, if any, artistic merit and consequently Ruskin's critique was fair comment.

Both counsel in summation, as expected, focused on whether Ruskin's comments were fair criticism or a personal attack.

The judge's instructions were verbose and difficult to follow (nothing has changed!). He too told the jury the only issue for them to decide was whether Ruskin's critique was a personal attack or bona fide for an art critic.

The trial took some eight hours including nearly two for jury deliberations. The jury found for Whistler but awarded one farthing (one-quarter of a penny) in damages. While it was customary to award costs to the prevailing party, the court said because the monetary award was so meager, it would enter judgment without costs.

Whistler left the courthouse further in debt!

The moral of the case was obvious then and is today: Court is a bad way to resolve disputes.

David Lenefsky practices law in Manhattan. He is a resource in art history for The Young President's Organization.