Factors in the refusal of cases

Inadequate evidence hinders examination of this topic; very rarely is there record of a specific case that an advocate refused to take. We do not hear of a single case that Asinius Pollio, Domitius Afer, or Fronto refused.

Other factors were also at work. The status of the litigant and/or advocate on the opposing side could have induced even the wealthiest advocate to weigh his options. Pliny is asked to represent Corellia against the consul-elect, C. Caecilius. While explaining his reasons for taking the case, Pliny acknowl­edges that he factors in his relationship with Caecilius, and Caecilius' position:

Est quidem mihi cum isto, contra quem me advocas, non plane familiaris sed tamen amicitia. Accedit huc dignitas hominis atque hic ipse cui destinatus est honor...

Indeed, while I may not be on intimate terms with this man, against whom you ask me to act, nevertheless we are on friendly terms. Added to this are the reputation of this man and the office itself which he will be undertaking....¹⁶¹

In a society where reputation and influence were seen not only as the public's perception of an individual but, more importantly, as an element of one's very identity and character, fear of offending the opposing litigant, or even those people connected to the litigant, was a serious consideration in deciding whether to take a case. This was not a concern only of advocates of Pliny's political status. Apparently Ponticus considered such issues, to the exaspera­tion of his potential clients, one of whom was Martial.

Lis mihi cum Balbo est, tu Balbum offendere non vis,

Pontice: cum Licino est, hic quoque magnus homo est. vexat saepe meum Patrobas confinis agellum, contra libertum Caesaris ire times.

abnegat et retinet nostrum Laronia servum, respondes �orba est, dives, anus, vidua.’ non bene, crede mihi, servo servitur amico: sit liber, dominus qui volet esse meus.

I have a lawsuit with Balbus, but you, Ponticus, do not wish to offend Balbus. I have a suit with Licinus, but he is also a big man. Often my neighbour Patrobas disturbs my little bit of land, but you are scared to proceed against a freedman of Caesar. Laronia retains my slave and denies it and you say, “She is childless, rich, an old widow.” It is not good, believe me, to serve a friend who is a slave himself. He must be free, who wishes to be my master.¹⁶²

Martial names three individuals whom he wishes to take to court, and one with whom he is already engaged in litigation. Ponticus’ reasons for avoiding offending these individuals are varied. The first three have great influence and power of their own, and if they were to perceive Ponticus as a threat could easily make life uncomfortable in numerous ways that Ponticus wishes to avoid. The widow could retaliate passively; that Martial describes her as childless and rich suggests that Ponticus wished to ingratiate himself in the hopes of receiving a legacy in her will. We cannot say for certain that Martial was writing of specific, real cases in which he was involved. However, the per­ceived restrictions and pressures on an advocate surely were grounded in contemporary realities.

The advocate’s own status also played a major role in determining whom he would willingly confront in court. Launching legal attacks upon one’s social and political superiors was risky unless the case was so good as to make success very likely. I have previously mentioned how numerous men began their careers by bringing accusations in court.

In their work on advocacy, Crook and Kelly both suggest that payment really did not stand in the way of litigants gaining adequate legal representa­tion in the courts.¹⁶³ Evidence to support or reject this position is frustratingly slim and we are forced to fall back on inference. While theoreti­cally it would seem that even the lowliest litigant could provide payment of value to even the wealthiest of advocates — such as by attending him in pub­lic (which would have been an investment of the litigant’s time rather than his money) — the reality surely suggests that the quality of one’s lawyer was relative to one’s own standing. Like Martial, if one were attempting to go against one’s superiors in court, it could have been rather difficult to find ade­quate representation. Could a poor client have offered anything that in practical terms a wealthy upper-class advocate would have deemed worth the effort put into the case? A wealthy advocate’s profession served two functions: he was repaying favors he had received from others, and he was actively undertaking others’ cases to make them indebted to him. Naturally, he would undertake those cases that promised the greatest gain. While the poor liti­gant could attend him in public, the influence of an indebted imperial freedman or agent with the ear of the emperor was of far greater value.¹⁶⁴ Thus, a poor litigant would have had to find an advocate of such standing that what little he could offer as payment would have been considered valu­able to the advocate. Such a search would most likely have resulted in an advocate from lower on the social scale.