The perils of litigation

'Who is the good man?', asks Horace, the Roman poet (Epistles, I, xvi, 40). He tells us that the attributes of the 'good man' include serving as a witness, acting as a guarantor, and settling cases as a judge (cf.

Bablitz, Actors and Audience, ch. 4). This may seem an unpoetic reply to the tantalizing question posed, but Horace wanted to emphasize the sense of duty and responsibility that was expected of the Roman citizen. To have shied away from such involvement in the legal process, without a compelling reason, would have been considered to be distinctly bad form. But, when it came to appearing as a litigant, the Roman citizen would normally blanch at the prospect. Of course, there were occasions when a citizen found it difficult to avoid going to court—e.g. when it was necessary to protect his honour and reputation. But sensitivity over one's good name could act as an inhibiting factor. Anyone whose reputation might suffer by exposure in the courts would be reluctant to sue. Litigation should be avoided like the plague, Cicero advised, even when the law was on your side. Litigation was regarded by many as undignified and not to be seriously considered by the man of good sense and restraint.

3.1.1 The Roman advocate

The danger of losing your reputation was but one of the perils involved in litigation. Another was the sheer abuse that you would suffer from your opponent's advocate. Roman advocates (a profession which emerged during the mid-Repub- lic) were skilled in oratory—Cicero, for example. Many of them, especially those of the late Republic, were trained in the Greek rhetorical method of oratory, which the advocate could use in both stages of the trial (see Cicero, De Oratore L, 166 ff.) to blacken the name of his client's opponent. Imagine yourself in court confronted by a Cicero in full cry: you would have to put up with a great deal of ritual abuse (vituperatio) about your looks, habits, breeding, and so forth.

For example, in Pro Quinctio (a partnership dispute) Cicero likened his client's opponent to a clown, and alleged that he was ill-bred and a dabbler in fraudulent practices, inter alia. It is probable, however, that such abuse was less intimidating than might be supposed. The very fact that it was ritual abuse robbed it of some of its sting (see further, Kelly, Civil Judicature, ch. 4; Bablitz, Actors and Audience, ch. 6).

3.1.2 The procedural system

The system of procedure constituted a major disincentive to involvement in litigation, especially in Republican Rome, since the State's involvement in civil procedure was minimal (in both the legis actio and formulary procedure). This was because of the notion, first proposed in the nineteenth century by Moriz Wlassak and still widely supported, that litigation was essentially ‘a private arbitration established under the approval of the State, as a substitute for self-help, the business of the State officials being only to see that this arbitration is conducted in proper form’ (Buckland and McNair, Roman Law ami Common Law, 400, as well as Metzger, ‘Litigation’ 275-6 in Cambridge Companion, 272-98 for an account of Wlassak's theory and subsequent interpretations). For example, (apart from the cognitio procedure) the plaintiff was solely responsible for ensuring the presence of the defendant in court. That could prove a difficult or impossible task. Further, even if the plaintiff got his defendant into court and succeeded in winning his case, the State took a minor role in the enforcement of the judgment. Moreover, between summons and judgment, there were several procedural stages that were characterized by a high degree of formalism, when the slightest mistake could be fatal to the success of the action, see Metzger, E., 'Litigation’, in Cambridge Companion, 272-98.

3.1.3 Economic factors

There was an economic disincentive inherent in early procedure—the requirement in certain types of action that the parties should deposit a sum of money as a wager on the outcome of the case (see the legis actio Sacramento at 3.2.2.1).

This constituted a major hurdle for some prospective litigants, especially during the currency shortages that regularly affected the Republic in its early days. Although the winner recovered the deposit, the risk of losing it—as well as the case—was undoubtedly an inhibiting factor. On the other hand, the actual cost of litigation was not prohibitive, at least until the later Empire. Republican advocates did not take fees: they came from predominantly wealthy, aristocratic backgrounds, and pursued their advocacy partly out of a sense of duty to fellow citizens, partly as a hopeful step on the road to achieving political distinction, and partly as a way of earning favours. A legal prohibition against taking fees was introduced in 204 BC, but was eventually ended under Claudius, see Crook, Law and Life of Rome, 90 ff., cf. Bablitz, Actors and Audience, chs. 3 and 6.

3.1.4 Corruption

It is hard to conceive that a legal system has ever existed (or could exist) that was totally free of corruption. Roman law was certainly not such a system. Some praetors were known to bend the rules occasionally to suit themselves and their friends. Some were accused of legacy hunting, i.e. doing favours for wealthy litigants in the expectation of a legacy in the litigant's will. These were important factors in the loss of prestige that the praetorship experienced in the transitional era from Republic to Empire. See Bablitz, Actors and Audience, ch. 4. Roman literature contains much sarcastic comment about corrupt practices in the law. A common allegation was that the successful litigant was the one who could afford to bribe the judge. Even allowing for some degree of artistic licence, the literary evidence does suggest that corruption was rife, particularly in the late Republic. Corruption could take a variety of forms: e.g. bribing the praetor, the judge, the jurors, or even the opponent's advocate and witnesses; or influencing the outcome of a case through the exercise of social, political, or economic power, or through the desire to please and earn a favour.

The advantages possessed by the wealthy and powerful over their weaker brethren were reflected in the course of litigation. Cases where the defendant was clearly the 'stronger' man in terms of wealth, power, or influence were rare. The weak generally did not sue the strong (see Kelly, Roman Litigation, 61, and see generally Chapter 2), but it should not be forgotten than litigation is but one form of dispute resolution.

3.1.5 Shaming

Another factor which had an important bearing on litigation was the practice, found particularly in early Rome, of ritual shaming (flagitatio). If a man was suspected of dishonourable conduct, he might be subjected to concerted shaming, intended to cause him the maximum public embarrassment. Often, it took the form of rude songs and vociferous abuse by a mob congregated outside the home of the 'offender'. Imagine yourself to be an ambitious politician subjected to this kind of treatment. Would you really want it known in the best circles that all this flagitatio was going on night after night outside your villa? Most probably you would desist from the conduct that was giving offence, in order to spare yourself further embarrassment. For example, having initially failed to respond to your opponent's summons to court, you would be more persuaded to put in an appearance. On the other hand, as a plaintiff, you would consider abandoning an action if it was likely to provoke public abuse of yourself or your family (see 10.4).

3.1.6 Settlement

The overall effect of the factors outlined previously was to create a distinct pressure on parties to settle their disputes rather than go to court. The importance of this practice was demonstrated by the development of specific contractual remedies for the enforcement of settlements (see 9.7.2). Judges would normally encourage the parties not to proceed to judgment. For a large part of Rome's legal history, the typical judge in a civil case was a distinguished layman, frequently a senator, who would worry at having to decide between two powerful men in case he incurred the wrath of the loser.

How delighted the judge was when they settled! He might even be viewed as a 'good man' for negotiating a settlement. For a good survey of the relationship between litigation and arbitration, see Bablitz, L., 'Roman Courts and Private Arbitration', in OHRLS, 234-44, especially concerning the terminological difficulties involved in identifying these practices.

3.1.7 Defying the perils

Despite the various perils associated with litigation, people did go to court; but it Is not clear with what frequency. However, Kelly, Civil [udicature, ch. 4, provides an invaluable insight into the type of cases which featured in civil litigation by analysing references in Justinian's Digest to responsa and rescripta (regarded as reliable ^dicators of litigation in practice). This shows that cases concerned with the law of inheritance were easily the most frequent, followed by contract and family law. On the other hand, personal injuries (delict) seemed a comparatively rare cause of litigation—the converse of the position in modern English law. The predominance of inheritance cases is perhaps not surprising, given the apparent interest of Romans in will-making and inheritance. But the conclusions must be regarded as tentative—as Kelly readily admits—since it may be, for example, that what attracted juristic attention (and that of the Digest's compilers) was not necessarily representative of actual litigation.

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Source: Du Plessis Paul J. Borkowski's. Textbook on Roman Law. Oxford University Press,2020. — 440 p.. 2020

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