The advocate in the courtroom

For a man to argue a case before a court successfully he must possess several skills, which Quintilian lays out in great detail for aspiring advocates. Indeed, without his extensive comments on these aspects, we would be woefully ill- informed, as no other source contains an equivalent level of detail.

At the same time we must bear in mind an awareness of Quintilian’s own motives for writing this work. Winterbottom is surely right to suggest that Quintilian was writing in reaction to numerous changes in oratory occur­ring during his day.¹²⁰ Thus, we must be aware that the Institutio Oratoria, while clearly reflecting the overall reality of his period, may on some points be promoting what he would like to see, rather than what was currently held and practised.¹²¹ Quintilian seems particularly intent on arguing against two points. One was the theory that rhetoric was a natural skill and, therefore, it was unnecessary to engage in extensive study as preparation for the law courts.¹²² Connected to this new attitude was a tendency among some speakers toward a style of speech that was easy and attractive to the audience, at the cost of the client’s case — a trend Quintilian deplored.¹²³ This is not to suggest that we must weigh his work for political spin as carefully as we do Tacitus’.

The advocate needed to have certain natural physical abilities. Quintilian is quick to say, however, that the gift need only be good enough to serve as a foun­dation for training.¹²⁴ General good health was the most basic and critical.¹²⁵ In addition, an advocate needed a good voice, authoritative and of good pitch. To back it up, good lungs were also vital; a weak voice was absolutely unaccept­able.¹²⁶ Two other essential innate traits were a generally pleasing appearance and physical grace.¹²⁷ These gifts were of great importance to all aspects of the advocate’s presentation and, if entirely absent, impossible to import. The voice, if at least adequate, could be improved with training, as could one’s physical grace, to a certain extent. However, an advocate’s face and body could hardly be transformed. Quintilian sums up the importance of these natural qualities by saying that all are of such importance that alone, they can give a speaker the reputation of being talented.¹²⁸

The list of requirements becomes far longer when considering the skills that an advocate must develop to be an effective speaker. He needs a good imagination, and the ability to adapt and improvise under pressure. He must have wit.¹²⁹ His knowledge, obtained by study, must extend to vocabulary, linear geometry, and civil law, as well as the customs and religions of the Roman state.¹³⁰ The advocate must also develop an excellent memory — one of the most important required skills.¹³¹ Acting ability was also necessary.

The advocate’s weapons

Within the courtroom the advocate needed an impressive arsenal to convince those sitting in judgment. It was not enough just to speak loudly, look people in the eye, and sound convincing. This was far too simplistic. The timbre of his voice, the movements and expressions of his eyebrows, eyes, hands, and body as a whole, all played a role in sweeping those present in the courtroom along the path to the advocate’s intended conclusion. It was certainly not any easy job. The above chapters have shown that those in the courtroom — the judge(s), litigants, and audience — all approached the courtroom with very different backgrounds, motives, and expectations, and the advocate had to attempt to juggle them all in his quest for success. The importance of the advocate’s tools in achieving his goal is made very apparent by Quintilian’s dedication of a substantial portion of the Institutio to the detailed examination of the weapons available to the advocate, and only through understanding the intricacies of delivery can we possibly comprehend the pressure an advocate must have felt while presenting his case.

The advocate’s voice, a critical element of his repertoire, required a blend of evenness and variety in tone.¹³³ In accordance with the nature of the subject and mood, the tone should alter as both the subject and mood change.¹³⁴ He must, for example, adopt an authoritative tone when giving advice. The voice must betray excitement to mark the rise of anger and the onset of pathos.¹³⁵ Emotions could also be portrayed by varying the delivery speed. A slower pace would imbue one’s words with greater emotional power, although one should avoid excessive slowness.¹³⁶ Breathing was also very important.

At the same time, the advocate could be working in a crowded, noisy court­room. Thus, he had to have a strong voice and needed to pitch it to carry as far as possible; the satirists frequently refer to the loud, booming voices of advo­cates.¹³⁸ Courtrooms could be very challenging in this regard. Our examination of the standard courtroom suggested that it was constantly filled with noise, making audibility even more difficult. We hear of people in the audience murmuring and shouting during the advocate’s speech.¹³⁹ One speech by Domitius Afer was interrupted by shouts from the companions of the opposing litigant.¹⁴⁰ The advocate had also to speak through the taunts, contradictions, and interruptions that opposing counsel regularly cast in his direction as well as toward the judge(s).¹⁴¹ Quintilian states that on occasion there could, in fact, be many people all shouting at the judge(s) at once.¹⁴² In circumstances where various courts were held within the same space, such as the quaestiones in the Forum of Augustus or the centumviral court in the Basilica lulia, and noise could travel between courts, Quintilian concludes an advocate is very happy if he can be heard by his own court.¹⁴³ Speaking before one of the tribunals of the centumviral court, Domitius Afer was forced to stop repeatedly during his speech because of loud applause in the neighboring court.¹⁴⁴ The tale of Galerius Trachalus being heard by all four tribunals, though he was speaking only before one, is told by Quintilian to showcase his extraordinary ability to drown out everything else.¹⁴⁵ Clearly, a robust and indefatigable voice was an absolute necessity.

In Pliny’s opinion, the advocate’s two chief aids to the effective delivery of a forensic speech were his hands and his eyes.¹⁴⁶ Fronto, too, believed the eyes to be important.¹⁴⁷ During a speech, the eyes were not to be fixed on the ground, nor ever closed.¹⁴⁸ They could be particularly effective in adding impact to facial expressions, since they reveal the temper of the mind and are able to show merriment and grief motionlessly.¹⁴⁹ At all costs, the eyes were never to be moved constantly or rolled.

Appropriate accompanying gestures were critical to the delivery of an effective speech.¹⁵² For that reason, they receive a great deal of attention in Quintilian’s work, which in fact discusses everything from feet to lips and eyebrows in great detail.¹⁵³ According to Quintilian, for example, it was detrimental for the eyebrows to be still at all times; however, it was equally damaging if they moved constantly. The eyebrows were required to partici­pate in the formation of a countenance for many specific gestures. When displaying anger, the brows were to be contracted; depressed brows indicated sorrow, brows lifted upwards indicated happiness. Furthermore, one could indicate consent or refusal by the lifting or lowering of the eyebrows.¹⁵⁴ Even the tilt of the head had implied meaning. The head should rest erect since if drooped it suggested too much humility, or if thrown back it suggested arro­gance, and inclined to one side gave the impression of languor.¹⁵⁵ Different movements of the head — which Quintilian says were well known and com­mon to all — expressed consent, refusal, modesty, hesitation, astonishment, and indignation.¹⁵⁶ While we today are familiar with the common head movements to indicate consent and refusal (nodding and shaking), we are ignorant of how the other four expressions were indicated.

The greatest attention was given to gestures formed by a combination of hands and facial expression. Quintilian explains that the hands could almost speak while the other parts of the body assist. Through their movements, the hands could request, promise, summon, dismiss, threaten, entreat, question, and deny.¹⁵⁷ The concentration of formulated gestures during a speech was apparently very high, Quintilian suggesting one gesture for approximately every three words.

A couple of examples will suffice to give an idea of the style of particu­larly common gestures. Touching the middle finger to the thumb and then extending the other three fingers was a standard gesture. In the exordium portion of the speech, this finger arrangement could be combined with mov­ing the hand forward, away from the body, with a gentle motion and slightly both to the right and left. At the same time the head and shoulders followed the direction of the gesture. The same gesture could be used in the narratio, the speciality speech of Quintilian. However, then the hand had to be moved with firmness and extended a little further away from the body.¹⁶² A slightly more expressive gesture could accompany a passage that was con­tinuous and flowing in style. This gesture involved extending the arm, with one’s shoulders back, and opening the fingers as the hand moved forward. When one wanted to give the words an especially splendid emphasis, this same gesture could be used; however, the arm was stretched out in a wide and extensive movement, which would give the impression that the words were expanding as the motion did.¹⁶³ Larger gestures gaining popularity in Quintilian’s day included striking one’s sides with one’s hands, swinging one’s arm over one’s left shoulder repeatedly, setting the right foot on tiptoe or lifting it off the ground, flapping the elbows against the sides, and rub­bing one’s nose.¹⁶⁴ While Quintilian includes these to show the eccentricities that were arising in the courts and indicate his disapproval, these examples impress upon us how physical some of the gestures were. Indeed, Quintilian indicates that as the speech advanced, gestures were to become bigger and more dynamic.¹⁶⁵

Aldrete intimates that the level of detail and the apparent specificity of gestures indicate that one purpose of making gestures was to supplement the advocate’s spoken word as sign language for those out of earshot.¹⁶⁶ Corbeill has rightly expressed unease over this interpretation.¹⁶⁷ There was indeed an unusual concentration of detail in the gestures. However, Quintilian treats gesture as an important means of intensifying the spoken words, to raise the emotions of those in the courtroom. This amplification was achieved by visu­ally displaying the sentiments expressed by the advocate.

Habet autem res ipsa miram quondam in orationibus vim ac potestatem; neque enim tam refert, qualia sint, quae intra nosmet ipsos composuimus, quam quo modo efferantur; nam ita quisque, ut audit, movetur... omnes languescant necesse est, nisi voce, vultu, totius prope habitu corporis inardescunt.

However, [delivery] itself has a certain amazingly powerful strength in oratory; nor truly does it matter as much what sort of things they are which we have composed within our own minds, as how they are expressed; for how the matter is presented will determine the impression each hearer forms... It is inevitable that all [appeals] will be weak, unless they are enflamed by means of voice, look, and the demeanour of the whole body.¹⁶⁸

Graf defines the use of gesture succinctly: “to underline and amplify the mes­sage of language by stressing the emotional, non-rational elements.”¹⁶⁹ This accords with Quintilian, who asserts that three elements of the speech move people: the voice, the grace of the gestures, and the delivery.¹⁷⁰

Movement within the courtroom was also considered an important accom­paniment to gesture. As I have established, it is certain that advocates spoke while standing in a sizeable open area that allowed for perambulation. We find a wide variety of movements. Walking to and fro during one’s delivery, if done for impact rather than out of nervousness, was considered effective by Pliny. However, Quintilian says it must only be for very short distances.¹⁷¹ Disarray of the toga to the extreme of falling off completely seems to have been a normal result of the advocate’s mobility.¹⁷²

Clearly the courts of Rome were, by most modern standards, far less disci­plined. The advocates, in addition to using sometimes quite wild gesticulations, also had a great deal of physical interaction with the audience. We have already discussed them hiding among the audience, sitting on benches during opponents’ speeches, and going around the court approaching various individuals.¹⁷³ During periods of extended applause, they talked with their friends, and when exhausted fell into the latter’s arms.¹⁷⁴ Advocates are also known to have consumed food and drink even during their pleading, although Quintilian does not approve of this practice.¹⁷⁵

The emotional nature of speaking was perhaps the most draining element of forensic oratory. According to Quintilian, it was not enough that the advo­cate give the appearance of a specific emotion — he had to actually feel it. Quintilian claimed that the effect was not fully convincing to the audience if the emotion was not genuine.¹⁷⁶ A speech, as we have seen, contained many different emotions, each of which had to be internalised and expressed appro­priately. Convincing displays certainly improved a speech. Following his request for full payment after the completion of a case, Martial is told that he did not win, so he was going to be paid only half. Martial retorts that even so he deserves the full payment, because he managed the appropriate emotional display — he blushed.¹⁷⁷ Quintilian states that in his own cases he could bring himself almost to tears and turn pale with grief.¹⁷⁸ In his opinion, the final section of the speech, the peroratio, demanded the greatest emotional dis­play.¹⁷⁹ Seneca, agreeing, suggests that an especially effective gesture here was to bow one’s head and make the voice break with emotion.¹⁸⁰

In addition to the gestures and movements he used and the emotions he displayed, we have noted that the physical appearance of the advocate was acknowledged as an effective tool. The advocate’s hair was to be cut, and not arranged in tiers and ringlets, something seen too often, in Quintilian’s opin- ion.¹⁸¹ His clothing was to consist of both toga and tunic. Quintilian is very specific concerning the length of the tunic and the arrangement of the toga, though he does not insist that the latter be made of silk.¹⁸² The overall impression of the advocate’s clothing was to give him a distinguished and manly appearance.¹⁸³ It would appear, however, that all did not follow Quintilian’s advice. Juvenal, as we have seen, criticizes one advocate who wears a transparent chiffon garment in the courtroom. When he protests that it is July and unbearably hot, Juvenal remains as much displeased by the spectacle as Quintilian surely would have been.¹⁸⁴

Jewellery was permitted. Again, though, Quintilian calls for simplicity: rings should not cover the fingers and “non medios articulos transeuntihus”, “not extend beyond the middle joint.”¹⁸⁵ Rings do appear to have been quite com­mon. Juvenal mentions the poor advocate who rents a sardonyx ring in order to appear more successful and attract clients. One of Restitutus’ clients may have brought sardonyx rings as payment for her case.¹⁸⁶

Makeup also appears to have been used. Pliny informs us that Regulus used to paint, in a circular fashion, around one eye (which eye was determined by whether he was defending or prosecuting). This is our only evidence of such use of makeup, but as Pliny does not draw particularly sharp attention to it, the practice may not have been exceptional.¹⁸⁷

Pliny also reports that Regulus wore a patch over one of his eyes, following the same principle as the makeup. It appears that the patch was placed above the eye, not covering it. We have two other references to eye patches in general, both of which appear in Martial’s epigrams.¹⁸⁸ However, the patch appears to serve a different function in each passage. We cannot say what function the patch served in the courtroom. Possibly it fulfilled a superstitious purpose, since we know that Regulus also consulted astrologers about his cases.¹⁸⁹

An advocate’s overall appearance thus provided an impression of his status and served additionally to affect the audience’s emotions.¹⁹⁰ Quintilian sug­gests that over the length of a speech it was most becoming if the toga became dislodged and unkempt; this lent an air of combat, vigour and energy, calculated to serve the advocate’s ends.¹⁹¹ By the same token it was appropri­ate in the normal course of a case for one advocate to attack the appearance of opposing counsel.¹⁹²

The impact of the court on an advocate’s speech

While the advocate attempted to integrate all these elements of his tone, glance, emotions, and diverse gestures and movements to best fit with the content of his speech, two additional factors affected his choices: the court hearing the case, and the seriousness of the case. An advocate greatly altered his style if he was arguing a public case that could result in the exile of his client, rather than a dispute over inheritance, for example.¹⁹³ Private cases on the whole required a more restrained delivery.¹⁹⁴ In all types of cases the advo­cate attempted to adjust his gestures, voice, and gait to best suit the rank of the judge(s) and the audience. Movements that were appropriate before a magistrate might not be appropriate in the court of the emperor.¹⁹⁵ Quintilian warns that the advocate must even be alert to the specific charac­ter of the judge, if arguing a case before a single judge. If the judge has a weighty or frivolous character, or is particularly learned, or very rustic, the advocate must adapt the various aspects of his delivery to suit. The extent of the advocate’s emotional display must also be shaped to the importance of the case itself. When pleading an important public case, the advocate is allowed to use every device “ad amplificandam orationem”, “for the amplification of [one’s] eloquence”. However, such emotion would be truly out of place in a case involving negligible penalties.¹⁹⁶ In addition, the emotions of the audi­ence had to be appealed to in different ways, depending on whether the advocate was counsel for the defence or the prosecution.¹⁹⁷

The advocate also had to consider the examining court when choosing his specific arguments. Different lines of reasoning had to be used in the cen­tumviral court versus before a unus iudex.¹⁹⁸ Pleas for mercy were most useful in the emperor’s court and in other courts where the judge was not bound to the prescription of the law; in such circumstances, the outcome of the case rested more on the feelings of the judge, and thus emotional appeals could prove more rewarding.¹⁹⁹

An advocate’s movements also were affected by which court was hearing the case. As discussed in Chapter Two, it appears that if the case was of very minor importance the advocates argued seated rather than standing, and so a much more restrained style was appropriate.²⁰⁰ If the court was such that the judge sat on a platform, the advocate had to adjust the angle of his face and make higher gestures to compensate.²⁰¹ Finally, if the advocate was arguing a public case before a large number of judges, it was permissible for him to walk while speak­ing in order to make individual contact with the entire panel.²⁰²

Aids for the advocate in the courtroom

Advocates supplemented their own assets with various props within the courtroom, the most common in a public case being the family of the defen­dant. Closely connected to those on trial, they excited the greatest pity, lamenting that they would suffer severely if the defendant were found guilty. It was especially effective to have family members present during the perora­tio, when the advocate’s emotional pleas reached their climax.²⁰³ Quintilian states that occasionally he had seen advocates display a picture of the crime painted on wood or canvas.²⁰⁴ What specifically was depicted we do not know — the moment the crime was committed or the scene following the crime? We know of one instance when a canvas-cloth painting consisting of several sepa­rate scenes was introduced by the prosecution.²⁰⁵ In all the scenes the defendant was depicted as either naked and imprisoned, or being released after his friends paid his gambling debts. How the prosecution made use of this artistic display is not stated. The advocate may have specifically referred to it throughout his speech, describing each scene and utilizing it as a sort of prompter for his individual points, or it may have functioned as a backdrop merely to set the tone of his position.

Portraits of individuals were also utilised. On one occasion, an advocate had arranged for a wax portrait of the deceased husband of the accused to be displayed at the appropriate moment of the peroratio. Unfortunately, those entrusted with the task did not know what a peroratio was, and so whenever the advocate looked at them they displayed the portrait, thus destroying any potential effect.²⁰⁶

The impact of the case on the advocate

The goal of an advocate’s use of all these tools was to improve the efficacy of his speech — to move those who were judging the case to accept his argu­ments.²⁰⁷ The advocate considered not only the content of his speech, but also practically every twitch of each body part, the sound of his voice, the length of his breaths, and the arrangement of his clothes. To this list may be added variations required by the type of case and the court. No wonder that when he fell silent at the end of a particularly important speech, he was drenched in sweat, utterly exhausted emotionally, mentally, and physically, with his toga in complete disarray.²⁰⁸

It is no surprise then to discover that anxiety plagued many advocates. Pliny draws a particularly vivid picture of Regulus’ unease. He would appear pale in the courtroom and, in addition to painting or patching his eye, was so worried over the end result that he would consult soothsayers in an attempt to foresee a case’s outcome.²⁰⁹ We see the role of superstition again in Suetonius’ efforts to obtain a postponement of a case he was to argue, after a dream sug­gested the ruling would go against him. Clearly, he felt apprehensive enough to heed such a warning.²¹⁰

At the same time, in Quintilian’s opinion nerves could be utilized. If the judge had not yet given the advocate his attention or was being distracted by some other means, the advocate could fill the time by confessing to his ner­vousness with a large sigh.²¹¹ Quintilian suggests that an advocate should not try to hide this feeling unduly, although he does not explain why. However, we can conclude from his general approach in the Institutio Oratoria that he thought nervousness would have a favorable effect on the judge(s) by suggest­ing the sincerity of the advocate and giving complimentary acknowledgment of the importance of the judge(s). The advocate, moreover, was not the only one who felt anxious when he rose to speak. Parents, too, could feel the weight of what was at stake. In a letter to Gavius Squilla Gallicanus, Fronto envies Gavius for being present when his son argued his first case, saying that at least his nerves were relieved as the speech progressed and met with approval; Fronto, by contrast, had to wait at home to hear the outcome.²¹²

This anxiety was not motivated solely by uneasiness over personal ability or the outcome of the case. The advocate had far more to win or lose than the case itself. As already noted, an important component of the Roman social hierar­chy was the significance it attached to visibility — which not only advertised an existing reputation but also could augment or diminish it. The courtroom, with its very public nature, was another arena in which individuals could increase their esteem and influence or lose what reputation they already had.

Through extended study of the sources, one gains a better sense of how suc­cess in court was closely linked to an advocate’s influence, fame, and reputation beyond the courts. Indeed, a Roman male’s public status tied into the forma­tion of his entire personal identity. Above we discussed how aspiring politicians used the courts as a springboard to a public career. However, for the most part we viewed this in terms of exposure; an advocate could become known and hence enlarge his circle. Yet this is not the complete picture, for in fact, the courtroom was an arena in which the advocate built his public iden­tity and then, through the cases that made up his career, reinforced, improved, or destroyed that identity and career. Aper asserts that no profession could do as much as advocacy to enhance reputation and bring public renown.²¹³

The degree to which the events of the courtroom reached beyond its boundaries is clear in the sources. Seneca the Elder describes how an epigram used by an advocate in court became a common joke around town for some time.²¹⁴ We have already noted visitors who came from outside Rome and immediately wanted to see the advocates they had heard of back home.²¹⁵ Pliny’s purpose for writing many letters was to keep out-of-town friends informed with news of the latest cases taking place in the city.²¹⁶

However, the degree of this celebrity status was not based solely on winning or losing a case; the audience was drawn because they saw how much risk the advocate was taking. Quintilian says an audience is moved not only by the issue of the case, but also by what the advocate has at stake, for which he uses the word “periculum" (danger).²¹⁷ In another passage he uses this same word to explain the origin of the advocate’s nervousness.²¹⁸ The peril was not just the possibility of losing the case. In the Dialogus, Maternus acknowledges that the quest for fame in the courts entailed the possibility that the outcome could damage the advocate’s status and reputation: “[nec]... famamque pallentem trepidus experiar”, “may I not, fearful, have to test pale fame.”²¹⁹ The degree of risk that an advocate took was naturally tied to the position and skill of the opposing litigant and counsel. We have discussed how giving offence might be a concern when facing powerful adversaries. But success against such oppo­nents meant the attainment of greater influence and weight for the victor.

An additional element that enhanced the risk was the possibility of being charged with calumnia — wrongful prosecution. If condemned on such a charge, the punishments varied but could include infamy, inability to prose­cute in criminal cases, exclusion from running for office, and other restrictions. Such a charge could ruin one’s public career in both political and legal spheres. Seneca the Elder recounts an advocate who was in danger of being indicted for calumnia. Seeing the risk, a friend aided him by appealing to the judges, and the charge was avoided. Afterwards, when questioned as to why he helped, the friend said that he feared the advent of another rhetori- cian.²²⁰ The professions of rhetoric and advocacy had enough in common for a degraded advocate to take such a position.

A strong link between success in court and an advocate’s reputation and influence stemmed, in part, from the Roman equation between an advocate’s ability to plead and his personal character. It was not simply a matter of a man being helpful to his friends, as we have seen described in Horace, but reached far deeper.²²¹ Quintilian states that the advocate should be “vir bonus", “good man”.²²² He takes this one step further when he says that the manner of an advocate’s pleading will in fact indicate whether he is a good or bad man. A statement by Aper is an excellent example of how an advocate’s ability to plead was considered inseparable from the person himself:

Quid enim dulcius libero et ingenuo animo et ad voluptates honestas nato quam videre plenam semper et frequentem domum suam concursu splendidissimorum hominum, idque scire non pecuniae, non orbitati, non officii alicuius administrationi sed sibi ipsi dari?

What can be more pleasing to a free and honorable mind, born to respectable pleasures, than to see his house always full with a coming together of the most distinguished men, and to know that this is not because of his wealth, or childlessness, or his administration of some office, but because of him?²²²

Speaking of the rewards of eloquence, Aper contrasts what draws people to attend upon other individuals: offices they hold, their childlessness, or their wealth. However, instead of saying that the advocate draws people because of his rhetorical skill, Aper declares that they are drawn to him because of “sib'i” (himself). He does not see an advocate’s skill as a trade to be practised, but rather as a part of the advocate’s self, his identity. This fusion was so strong that when an advocate’s speaking ability did not match his character, bafflement resulted. In his description of Cassius Severus, Seneca the Elder states that the most remarkable feature about Cassius was that the “gravitas, quae deerat vitae, actioni supererat”, “the dignity that was lacking in his life was abundant in his speech”.²²⁴ To the Romans, lifestyle and speaking ability were inseparable.²²⁵

Fame and reputation were clearly attached to the activities of the courts of Rome. At the beginning of the previous chapter the validity of the so-called “decline” of eloquence was considered, and it was argued that, while there was no decline per se, oratory did undergo various transformations during the early imperial period. In addition, it also appears that, as the motives of those argu­ing cases before the court evolved and diversified, the presentation of a speech within a courtroom also was affected by various stylistic changes. In light of the apparent social evolution within Roman oratory, we can forge links between these changes and the formation of fame, influence, and character. For the most part, the new developments are branded by the ancient authors as undignified, base, and disastrous for oratory.

The development that garners the most attention among the ancient authors is the changing style of public speaking. It had become, they tell us, more flowery, effeminate, voluptuous, and corrupt.²²⁶ Delivery was in a chanting, singsong fashion, with many modulations of the voice that Quintilian could not decide whether to call useless or repugnant.²²⁷ Furthermore, advocates were not hiding their skill in an effort to make the speech seem spontaneous, as Quintilian advised.²²⁸ Instead, they were flaunt­ing their talents and being ostentatious to the point of sacrificing cases so as to showcase their skills.²²⁹ The sole purpose of this display was to obtain the applause of the audience — which wanted only to be charmed.²³⁰ Quintilian calls these advocates the slaves of applause.²³¹

The reasons given to account for these various changes deserve considera­tion. It is possible that there was a general shift towards decadence in Roman oratory. The style of schoolroom declamation was increasingly infiltrating the courts and, by its nature, declamation focused more on the artistic function of oratory than on the practical.²³² The growth of the empire may also have had some small effect. As mentioned, more cases meant that the courts did not always have adequate time to deal with each one; in consequence, intricate time-consuming arguments might have had to yield to practicality on occa­sion.²³³ Finally, statements suggesting that the practices of the past were better than the present situation warrant caution, since it is a timeless human characteristic to denigrate the present in favor of former times.

These arguments perhaps can explain some of the changes. However, two shifts cannot thus be accounted for: 1) the increasing focus of advocates on gaining the approval of the audience which, taken to extremes, damaged the case, and 2) comments about the education of both the audiences and the advocates. To explain these phenomena we must acknowledge both the new social reality found in the Roman courtroom and the impact of the changing political climate in the early imperial period.

Why were advocates undermining themselves and their case for the applause of the audience? One factor surely must be the influx of new advo­cates of provincial or humble origin. What were their motives for taking up advocacy? Above I argued that the profession enabled them to make money and improve their social status. At the same time, however, the great major­ity of these men likely were not intent upon gaining the level of influence and power that a political career required. Not attempting to impress the politi­cally powerful individuals of Roman society, these men were perhaps satisfied with dazzling those who judged the cases and creating enough reputation and celebrity to make a name and a stable career. These advocates did not have to adhere diligently to the traditional style and work to win over members of the ruling class who had been trained in such skills. The audience was their focus, and they therefore adapted their styles to appeal to it alone.

On the opposite side, the changing political nature of oratory may have affected aristocratic advocates as well. It is held by some that, with the com­ing of the Principate, the opportunities for public oratory (in the political and legal arenas) began to dwindle, as more decisions were made by the emperor apart from the established system.²³⁴ Other scholars, however, suggest that Romans did not withdraw from the courts but rather, in fact, turned to the courts all the more (as the other arenas were closed off) to facilitate the forma­tion of their public reputation.²³⁵ The rigid requirements of traditional rhetorical practices were perhaps slowly relaxed since the role of the courts as a political nursery was diminished when political power was determined more by proximity to the emperor than proven oratorical abilities.

Stepping back, are we perhaps overestimating the ability of the courts to make a man’s reputation? In the late republican or early imperial period, how extensive is the evidence that a person of no wealth or connections could become a political powerhouse through the courts? Certainly we can say that the courts were a way to maintain, increase, and decrease reputa­tion. However, they perhaps could not create it from scratch. In the republican period, did an advocate first make his name through court cases or was his auctoritas, to a certain degree, already made outside the court, with the court serving to publicise that auctoritas and augment it?

Or should we be seeing this function of the courts as a development of the imperial period? Is it possible that this arena began to be considered a place where a reputation could be made from scratch only in this period? If an advo­cate came to the courts already possessing a certain amount of auctoritas, he did not have to focus on the audience from whom he had to gain his reputation, but could focus on presenting a tightly argued case (which would be of more interest to politicians looking for new magistrates and allies). Fronto describes the son of Squilla Gallicanus who went to speak in the courts: “nam in forum descendit natalibus nobilis, de foro rediit eloquentia quam genere nobilior”, “for he went down to the forum noble by birth, he returned from the forum more noble by eloquence than by lineage.”²³⁶ Even Pliny, who must have had some con­nections through his uncle (an advocate for many years) was hardly starting his pursuit of auctoritas in the courts. However, we can assume that those of more humble origins entering the courts over the course of the first century were beginning with little or no auctoritas, and thus had to appeal to the audience to gain that approval. Courts were becoming the cradle, rather than the showcase, of auctoritas. Such a shift clearly resulted in far greater importance being given to the audience’s approbation; their approval was no longer seen as a means by which an advocate could swing the opinion of those whose opinions really mattered. Now their approval was the goal itself.

The tie between personal identity and oratory can perhaps also be seen as a result of this social transformation in the courts. Would Cicero have equated his personal identity so closely with his oratorical abilities? If Quintilian is reacting to those trying to create a reputation in the courts, a most effective way of excluding them from the contest would be to say that only good men could be effective advocates. No doubt uneducated humble speakers would not meet his criteria for being “good”. By imposing such a definition, Quintilian can then explain successful advocates of humble origin as good speakers but bad men.²³⁷ By this method Quintilian attempts to remove the audience’s power to grant any status to an advocate, by arguing that status is set and determined before entry to the court — a “vir bonus" is made before he goes before an audience.

Since the audience now played a pivotal role in the creation of reputation, an additional method of thwarting such advocates’ hopes involved criticizing these spectators. In the sources we find a number of disparaging statements concerning the audience.²³⁸ Claims that humbler advocates were working solely to win the approval of an uneducated, ignorant audience would explain these advocates’ success, without requiring established advocates to acknowl­edge them as equals.