The litigant in the courtroom

It is often difficult to determine whether litigants were represented by advo­cates at all stages of their cases. We hear of advocates at what are likely preliminary hearings, and yet we also hear of such hearings with no mention made of advocates.⁶⁵ With such spotty evidence it is difficult to determine when a litigant was actually representing himself.

There is no evidence of women representing themselves in the courts of early imperial Rome. Women who actively argued their own cases in the republican period were viewed as oddities. Among the “memorable doings” recorded by Valerius Maximus, a section is dedicated specifically to “Quae mulieres apud magistratus pro se aut pro aliis causas egerunt", “Those women who pleaded before the magistrates for themselves or for others.”⁶⁷ Women pre­sented their cases then through representatives — family members, friends, or tutors. Calatoria, a resident of Herculaneum, apparently sent Calatorius Speudon to Rome to represent her interests in a case.⁶⁸ The similarity in their names suggests a familial relationship, and Calatorius was perhaps her tutor as well. Urgulania, a friend of Livia summoned to court over a sum of money, received aid from Tiberius, who went to court to speak on her behalf.⁶⁹ Neither Calatorius nor Tiberius were necessarily serving as advocates for these women, but rather were in a way standing in their place.

On some occasions (though surprisingly few) it is clear that a male litigant argued his own case. It was Seneca the Elder’s belief that Cassius Severus only ever defended himself in court, implying that Severus focused on prosecuting others.⁷⁰ We know of three men who defended themselves in the emperor’s court: Trebonius Rufinus, a leading citizen and duumvir of Vienna, argued his own case and Lustricius Bruttianus and Montanius Atticinus, a proconsul and his assistant, each presented his own side in the dispute between them.⁷¹ That these cases were argued before the emperor cannot be taken as evidence that litigants typically did not use advocates in this court. In several other recorded cases there, advocates clearly participated.⁷²

How common was it for men who had at least the standard amount of rhetorical training possessed by any upper-class man aspiring to a political career to speak on their own behalf in the courts? Certainly those such as Cassius Severus who had careers as orators had the skills to undertake their own cases. Yet even Cassius appears to have been represented by counsel on at least one occasion; we learn of a hearing in which the praetor reproached Cassius for some comments made by his advocates.⁷³ Even men such as he did, at least on occasion, find other representation; unfortunately, why Cassius found someone else to present the case is unknown. It is disappointing that so little survives about the personal legal activities of those leading Roman citi­zens of whom we are somewhat well-informed. Pliny must have been involved in at least a few of his own legal disputes over the years, and yet we hear nothing of them in his letters. All we can conjecture from his silence is that such events were so common as to make their inclusion superfluous, which gets us no closer to determining whether he argued in his own interest or had an advocate.

Even when represented, a litigant was commonly present in the courtroom during his case.⁷⁴ On only one occasion do we hear of an advocate dealing with a case in the litigant’s absence, though at which stage of the case is not specified.⁷⁵ But no author, not even Quintilian who supplies so much of our information, specifically states that a litigant had to be present.⁷⁶

Emotions

The emotional state of litigants was clearly tied to the type of case or the stage it was at. In one of his satires Horace describes being hounded by a follower who does not want to leave him to attend the preliminary hearing of a case in which he is involved. The admirer decides to skip his appearance and accom­pany Horace instead.⁷⁷ On this occasion the litigant seems to have been unperturbed, and we must conclude that the case was of little importance, or at least that his failure to appear would not cause him much hardship.⁷⁸ This litigant’s calm demeanour is the exception among the available evidence. We hear most often of the emotional distress of defendants, especially those involved in public cases, who frequently are described as suffering some degree of anxiety — frightened, worried, trembling, or pale-faced.⁷⁹ In a letter to Triarius, whose case he is undertaking, Pliny acknowledges his client’s anx­iety; while Pliny does not mention the nature of the case, he states that the matter is important and hence Triarius will be anxious.⁸⁰

The anxiety and stress felt by litigants, especially defendants, could become quite extreme, as illustrated by an incident in the emperor Claudius’ court­room. An unidentified knight was defending himself against his enemies, on a false charge of improper conduct towards women. Not only were the charges of a particularly embarrassing nature, but in addition his foes paraded several prostitutes through the court as witnesses. Finally, the knight snapped, hurl­ing his writing tablet and stylus at the emperor while rebuking him for his cruelty and stupidity.⁸¹ Here we see the worst possible plight of a criminal defendant: falsely charged with a crime, watching his reputation being black­ened by witness after witness but largely unable to fix the situation, he sat waiting for the time when he or his advocate could respond; by that time, though, most of the damage would already have been done, and through stress and frustration he might lash out.

Clothing

Regardless of his or her emotional state, the litigant was expected on occasion to exhibit a certain physical appearance in order to present an image that would bolster the advocate’s argument. Clothing was one important element. The “business suit” of a Roman citizen was the toga, and for private cases this is what Roman litigants wore. The meaning attached to different types of clothing is also illustrated by a public case in which the citizenship of the defendant was somehow an issue. Appearing before the emperor Claudius, the advocates squabbled over whether the defendant should wear a toga or a Greek cloak.⁸³ Claudius ruled that the litigant was to change between toga and cloak, depending upon whether he was being defended or accused by the advocates. While Suetonius presents this anecdote to show the emperor’s eccentricities, we can instead see in Claudius’ solution his real understanding of how clothing could affect perceptions within the courtroom. At least one of the advocates believed that the litigant’s adoption of clothing that could either support or refute his case was a real threat.

Other types of dress were commonly deemed capable of making an impor­tant impact in court. Defendants in public cases typically donned dark clothing, traditionally associated with mourning, vestments that were also expected to be shabby and dirty.⁸⁴ Such mourning displays extended beyond clothing; defendants were to let their beards and hair go uncut and put for­ward a generally unkempt appearance.⁸⁵ We do not hear how a female defendant’s toilette was to vary from her typical public attire, although it can be assumed that she too donned dark and dirty clothing.

Defendants did not present this unkempt appearance just in the court­room but adopted it as soon as the charges were laid. Taking advantage of this practice, spiteful accusers would sometimes bring charges against their enemies and then, by letting the case stall, could force the defendants into mourning attire (and increased humiliation) for an extended period of time. This practice became such a problem during Augustus' reign that he struck off the records all cases that had been pending for great lengths of time due to such designs.⁹⁰ Yet the practice continued. In an oration addressing delays in prosecution, Claudius describes accusers who lay charges against individ­uals and then purposefully delay, even leaving town for extended periods. The defendants are left “in albopendentes", “hanging on the docket” unable to take the case forward and clear their names.⁹¹ Decades later, Vitellius can­celled pending cases to deal with the same problem.⁹²

Participation of the litigant

The litigant's participation within the courtroom was not limited to being a suitably clad figure silently displayed before the court. He also actively par­ticipated within the courtroom by speaking and physically interacting with the advocates for both sides, and with the judge(s). Interestingly, no contact is mentioned between a litigant and the audience.

Nonetheless, it appears that on occasion litigants would verbally participate in the presentation of their case before the judge, even concerning matters with which their advocates were already dealing. In his description of the case he judged between the good man and the rogue, Gellius says of the rogue:

Is tamen cum suis multis patronis clamitabat probari apud me debere pecuniam datam consuetis modis, "expensi latione,” "mern.ae rationibus,” "chirongraphi exhibitione,”

“tabularum obsignatione,” "leslium intercessione,” ex quibus omnibus si nulla re probaretur, dimitti iam se sane oportere et adversarium de calumnia damnari...

Yet, he along with his numerous advocates were proclaiming noisily that the payment of the money ought to be demonstrated before my court by one of the usual ways, by a “receipt for payment,” by a “monthly account-book,” by “producing a signature,” by “sealed tablets,” or by the “testimony of witnesses”; [and] if it could not be demonstrated in any of these ways, that surely he ought to be dismissed, and his opponent found guilty of blackmail...⁹5

One gets the sense that poor Gellius felt a bit pressed upon, confronted by at least three men (two advocates and the litigant) all excitedly arguing the same point at the same time. It is difficult to determine whether the rogue's actions were typical or exceptional. Gellius was hearing a private contractual case of some financial value, but without extreme penalties. The entire presentation of the case may have been slightly more relaxed than would be common in cases of greater consequence, and so the rogue might have felt more at ease to actively participate. However, we must also be aware of Gellius' bias. By drawing direct attention to the noisy protestations of the rogue and his advo­cates, Gellius may be showcasing how this litigant was deviating from what a person of good character would do — the rogue was not content to let his advocates deal with the matter but in his overzealousness and brazenness had also to be directly involved.

In more critical cases such as those before the quaestiones perpetuae or in the centumviral court, in which the advocates delivered lengthy, complicated speeches and entered into rapid debates with opposing counsel, we hear noth­ing of the litigant standing alongside the speaking advocate, verbally adding his own opinion.⁹⁶ In such an environment a litigant did on occasion inter­rupt his advocate during his speech. Quintilian suggests that if an advocate does not want to proceed down the path of a specific argument he should pre­tend that he has been interrupted by his client — presumably giving the impression that the litigant demanded he not continue further on that line.⁹⁷ This device would only have been believable if such interruptions occurred at least somewhat frequently. It would seem, then, that even during the advo­cate's speech a litigant could interrupt and address him directly.

A litigant could aid his advocate by non-verbal methods as well. The liti­gant's clothing has already been discussed. Advocates also frequently used their clients as “props”, making valuable impact by addressing comments

directly to the client during a speech.⁹⁸ Even more important, in Quintilian’s estimation, was for the litigant to visually display upon his face the emotional state in which the advocate was describing him within his speech.⁹⁹ Apparently this was too much to expect of many litigants; Quintilian remarks that very often the reality of the litigant’s countenance does not match the advocate’s description, sometimes causing the audience to laugh.¹⁰⁰

The mourning attire of defendants in public cases, and Quintilian’s fre­quent remarks about moving the judges to pity in such cases, suggest that many litigants were commonly expected to express sadness. Although Quintilian does not mention tears specifically, various authors refer to the tearful faces of those standing trial, while one advocate in his speech tells his female client, a defendant, to “pour forth tears”.¹⁰¹ It is likely that downcast expressions were expected of a defendant. We can also hypothesize that expressions of confusion or disbelief on a litigant’s face could have been uti­lized in cases in which the advocate was arguing for the ignorance or victimization of his client. Certainly the litigant would have been told not to display anger, frustration, boredom, or hatred, which could only hurt his case.

In addition to facial expressions, litigants also would have been expected to carry out physical movements to enhance their advocate’s speeches. Quintilian mentions how little is the effect of such statements as “tendit ad genua vestra supplices manus”, “he stretches out suppliant hands to your knees” or “haeret in complexu liberorum miser", “the wretched man is held fast in the embrace of his children” if the litigant does not carry out the actual motion.¹⁰² Both of these gestures were feasible from the bench where the liti­gant sat. He could easily extend his hands towards the judge(s) from a seated position, and it appears that on occasion litigants did physically embrace a judge’s knees.¹⁰³ His children could be stationed nearby with other family members, to be clasped at the appropriate moment, although positioning the children at a distance so that they had to run across the court through the audience to their father, for example, would have created a still better theatri­cal effect and likely generated greater pathos among the audience and the judge(s). Nothing required that litigants remain seated during the hearing and we hear of litigants moving about within the courtroom to carry out the actions requested by their advocates.

Sometimes these requests included having litigants physically interact with their opponents. Quintilian recounts the occasion when an advocate led his young female client over to the bench of Quintilian’s client for dramatic effect. Quintilian foresaw the advocate’s plan, and told his client to leave his seat beforehand, thereby negating the effect. This anecdote is informative. First, recalling the discussion in Chapter Two of the physical arrangement of the courtroom, it is clear that the participants had physical access to each other. Second, and of interest here, it apparently was not that unusual for a litigant to rise and leave his seat during the arguing of the case. On this occa­sion Quintilian’s client departed somewhat discreetly since it was not until the opposing advocate was already leading his client over that he realised Quintilian’s client was no longer there. At the same time, his departure cer­tainly would have been observed by some of the audience. If it was very unusual for litigants to withdraw in such a way, surely enough of a murmur would have arisen within the court to alert the opposing counsel. We hear of one other occasion when a litigant was physically used as a prop by his coun­sel. Quintilian writes of the advocate who carried his client, a child, around the court in his arms for all to see.¹⁰⁴ Likely the advocate was attempting to stress his client’s young age as well as his need for protection.

These various forms of participation — appearance, facial expressions, ges­tures, and physical movements — were only as effective as the abilities of the litigant, who to a certain degree was forced to become something of an actor. All gestures and movements must have been prearranged between the litigant and his advocate. In my examination of the advocate’s role in Chapter Seven, I discuss how many different expressions and gestures an advocate might use within a single speech. Most likely the same number was not expected of the litigant; too much coordinated movement between an advocate’s speech and his client’s movements had the potential to turn a persuasive oration into something closer to a vaudeville act. That said, even coordinating a few of the litigant’s movements made timing critical. The litigant would certainly have had to pay close attention to his advocate’s speech and know when he was to move into position. Transition from an inactive to an active pose — for exam­ple, moving from sitting on a bench to advancing to a judge and clasping his knees — to be there when the advocate referred to him might not have been easy. For a person with no experience before the public in such a setting, it was likely very difficult to give a spontaneous feel to the movement and not have it come across as forced. The advocate could help; often, advocates delivered parts of their speech ex tempore and an able advocate could slightly adjust the order of his speech or extend a point or two until he saw that his client was properly positioned, and then refer to the client’s movement.

While individuals of great wealth may have been able to avoid litigation with greater success than their lesser fellow citizens, and lesser litigants may not have cared that their exposure in the courtroom ruined any chance for a political career, no one was impervious to the damage that could be done by standing as a litigant within the courts. If the case was of great import, the litigants had much to endure; not only did they suffer the stress of an unknown ruling (the outcome could not always been controlled), as well as the character attacks (be they true or false) of opposing counsel, but in addi­tion they were expected, under such strain, to aid in the presentation of their case by whatever means required, from wearing certain clothing to portraying certain emotional states. Whether in an attempt to gain redress for a per­ceived injustice or merely to inflict damage to the public reputation of an enemy, initiating litigation was not something to be undertaken lightly.