Time investment and workload

Quintilian describes a number of the standard activities an advocate must embark upon to prepare a case:

... in discendo rimari necessarium est, quae personae, quae tempora et loca, instituta, instrumenta, cetera, ex quibus non tantum illud, quod est artificiale probationis genus, colligi possit, sed qui metuendi testes, quomodo sint refellendi.

... it is necessary in learning [the case] to examine thoroughly the times and places, the customs and documents, and the rest, from which it is not only possible to reckon which are the artificial type of proof, but also [to know] which witnesses ought to be feared and how to refute them.¹

The conscientious advocate interviewed the litigant a number of times, to gain an understanding of the issues of the case. During these interviews the advocate also cross-examined his client to test both the true motives for the initiation of the case (if his client were the plaintiff or accuser) and the possi­ble effectiveness of his client as a witness. Quintilian recommends that the advocate take notes of these interviews for future reference.²

The advocate also had to find, identify, and review all documents con­nected to the case for the obvious reasons of testing his client’s veracity, and assessing both the legality of the documents (i.e. intact seals, the proper num­ber of witnesses present, etc.) and their value to the case as a whole.³ Witnesses also had to be carefully prepared, which the advocate did by testing each with various possible questions from the opposing counsel, and repeat­ing this process on several occasions to insure the individual was consistent and convincing.⁴

Of the various elements involved in an advocate’s preparation of a case, the composition of his speech receives the most attention in the ancient sources. This is somewhat misleading, considering the nature of a case.

If his client had arranged for more than one advocate to represent him, the advocate also had to meet with colleagues to determine each person’s focus and role. Various sources, including Quintilian and Pliny the Younger, describe cases with anywhere from one to a sizeable group of advocates repre­senting a litigant.⁵ Volusenus Catulus enlisted a formidable defence team: Domitius Afer, Crispus Passienus, and Decimus Laelius.⁶ Asinius Pollio and Messalla Corvinus, an equally powerful team, also together undertook the joint defence of apparently more than one nervous client.⁷ We also find a number of general references to litigants with multiple advocates.⁸ So many examples appear, in fact, that having multiple advocates was arguably quite common. There appears to be no tradition that certain types of cases called for more or fewer advocates.

We have only one hint of how a strategy meeting for multiple advocates might have appeared. In the Dialogus Vipstanus Messalla enters a room and finds Curiatius Maternus, Marcus Aper, and Julius Secundus gathered there. Noting their serious faces, he says, “Numparum tempestivus... interveni secretum consilium et causae alicuius meditationem tractantibus?", “Did I come at a bad moment... during a private consultation, a private meeting for those man­aging some case?”⁹ We can assume that such a gathering, therefore, resembled a meeting of advocates. Whether other features besides the iden­tity of the men present and their serious faces indicated their purpose to Messalla we cannot tell.

The majority of advocates prepared their speeches in some written form. Here the practices of advocates varied from merely making rough notes of the general ideas to writing out the complete text. In Quintilian’s day, the note­books of Cicero were still extant as well as the notes of many others, either exactly as made by the advocate before the speech was given, or edited in book form.¹⁰ Cassius Severus, according to Seneca the Elder, wrote out almost the whole of each speech, and even went so far as to include opportunities for wit.¹¹ Pliny mentions Regulus’ habit of writing out his speeches in their entirety as well.¹² Quintilian suggests a mixed method; it is useful to write out the whole but, when one is defence counsel, it is far more effective to fash­ion the opening of one’s speech from something said by the prosecuting counsel just finishing. This gives an ex tempore feel to the beginning, after which one can transition into the written portion.¹³ There were, of course, exceptions to the rule. Lucius Vinicius was known for never writing down a thing before he spoke.¹⁴ Those advocates working with many cases at any one time likely sought the middle ground. Quintilian indicates that many wrote out the necessary portions, especially the beginning of the speech, and thought out the rest as time permitted.¹⁵

Writing out the speech was the penultimate stage; Quintilian advises advocates to memorize the whole if time permits and if not, to memorize at least the main points and their order. He did allow that it would not be detri­mental if the advocate used some sort of memory aid in the courtroom, such as a list of the main points.¹⁶

The length of speeches was naturally tied to the amount of time each side was allotted during the hearing. Over the course of the first century, the time permitted to a speaker appears to have dwindled. Both Aper and Maternus make comments in the Dialogus that the advocate was “iam" (now) being forced to finish his speech in a far shorter time than previously; according to Maternus the advocate was reduced to an hour or two at most.¹⁷ Quintilian, a contemporary, also acknowledges that the time available to the advocate is often short.¹⁸ This restriction can possibly be linked with what seems to have been a newly emerging case procedure, which called for the points of the case to be argued by each side, one by one; this dispensed entirely with the need for extended speeches by each advocate.

Over the course of the first century the courts did on occasion get bogged down by cases for numerous reasons, both practical and political, and such adaptations could have helped alleviate the pressure.²¹ While the statements made by the ancient authors concerning the new procedure and restricted time allotments give no details, evidence suggests the reports are indicative of only some courts. The procedure followed in most public cases generally assigned six hours of speaking time to the prosecution, and nine to the defence. If the case was of particular complexity or importance these amounts could be increased, though the ratio of 2:3 tended to be maintained.²² Pliny writes of speaking for seven hours in the centumviral court on one occasion, and when sitting as judge he allowed unrestricted time to the advocates.²³ Martial, a contemporary of Tacitus and Pliny, also mentions long speeches in his writings. Poking fun at Caecilianus’ longwinded speeches, Martial sympa­thizes with the arbiter who reluctantly gives Caecilianus the time of seven water clocks for his speech.²⁴ In another epigram, Martial attacks Cinna’s fail­ure to interrupt and harangue the opposing counsel’s speech:

Hoc agere est causas, hoc dicere, Cinna, diserte,

horis, Cinna, decem dicere verba novem?

sed modo clepsydras ingenti voce petisti quattuor. o quantum, Cinna, tacere potes!

Is this pleading cases, is this eloquent speaking, Cinna, to say nine words in ten hours? But now you, in an enormous voice, ask for four water clocks.

At first reading it is tempting to believe that Martial is exaggerating how long the speech of Cinna’s opponent was, to stress how little he had to say in it. However, Martial rarely takes his exaggerations to such extremes. A speech of ten hours, given Pliny’s seven-hour speech, does not fall outside the realm of possibility.

Clearly not all speeches were becoming briefer, and it is perhaps significant that the two references to the new point-by-point procedure are found in the context of the emperor’s court. In an earlier chapter we considered the vast number of cases coming to Rome and the emperor’s court as the empire expanded. It is certainly easy to conceive that as decisions became more and more concentrated in the person of the emperor, some changes were necessary to accommodate the increased workload.²⁶

The surviving sources mention speeches ranging in length from one-half a water clock (seven-ten minutes) to seven hours, which calculates to approxi­mately 30 to 40 water clocks.²⁷ Using modern equivalents and calculations from our ancient data, we know that it takes approximately two minutes to read at a comfortable pace one A4 (210 x 280 cm/8J4 x 11 in) sheet of double­spaced type. Thus we end up with a range of seven-and-a-half to 300 pages. Preparation of a speech thus could require extensive time.

In addition, an advocate had to prepare his arguments for the altercatio, or debate portion, of the hearing as well as the questions he would ask to exam­ine and cross-examine the various witnesses.²⁸ The speeches were followed by the reading of the documents pertinent to the case and the examination of the witnesses by both sides. Quintilian suggests that the advocate also attempt to prepare refutations to arguments he suspects his opponent will put forward.²⁹

An advocate also had to spend time maintaining and improving his physi­cal abilities.³⁰ We hear little of how this was to be accomplished.

In total, then, how much time did an advocate spend preparing any given case? Naturally, there is wide variation, depending to a large extent on the complexity of the case and the advocate’s willingness to commit his time. Furthermore, the sources always speak of the extremes; looking for an average among these is impossible. Quintilian speaks of advocates who first met with a client the day before the court date, or even early in the morning of the day itself.³⁵ Scaurus apparently used to prepare his cases when he was dressing, or even on the courtroom benches.³⁶ It is difficult to determine how much of this is bravado, and such scant preparation time was certainly considered inadequate by both Seneca the Elder and Quintilian, the latter of whom calls these men “negligentibus” (negligent) and perverted by vanity.³⁷ Based on our examination of the various preparatory activities involved in a case, and con­sidering the standard caseload for a productive advocate, we can suggest that an advocate could spend anywhere from one week to one year on preparation.

The type of case and the procedure followed for that specific case would have greatly affected the time required. Open-and-shut private cases involved a usual minimum of two hearings, which could be relatively short if the issue was sim­ple, and held in quite quick succession if the parties involved agreed.³⁸ With that in mind, an advocate may have tried to complete his preparation for rela­tively simple cases even before the first hearing, since the second hearing could follow hard upon. In a case Gellius was appointed to judge, the consul ordered him to render a verdict before the Kalends, the first of the month, which sug­gests that the time between the first hearing and the verdict was going to be at most one month.³⁹ In important private suits and almost all public cases the lit­igants had much more at stake and the issues were more complicated. Thus, the advocate likely required more time to exhaust all avenues of examination. In public cases there would be a series of hearings and a specific period of time set for the collection of evidence, the inquisitio, which, based on republican evi­dence, could range from ten days to a year. It is possible that Augustus’ legal reforms altered the allowable time, though public cases of various types were still receiving up to a year in the imperial period.⁴⁰ The length of time between the initial hearing and that in which the advocate would begin to present his case could be anywhere from approximately two to three weeks up to 13 to 14 months. Quintilian suggests that the advocate had a better chance of commit­ting his speeches and arguments to writing beforehand in public cases because he would have intervals of several days between the hearings.⁴¹ However, it must be remembered that the intricacies of such cases — gathering evidence, examining witnesses, possibly coordinating a team of advocates, and preparing long and detailed speeches — could easily consume much of that time. The loca­tion of the litigants, witnesses, and documents could also slow down the advocate’s preparation. If all parties and evidence were in Rome, the advocate could organize his case quite quickly; otherwise, travel time became an issue, and could extend the advocate’s preparation time as he waited for witnesses and documents to arrive.

The length of time the advocate needed to prepare his case was also affected by whether he was representing the prosecution/plaintiff or the defendant. Quintilian acknowledges that an advocate can far better prepare a case if he is attacking rather than defending. He knows what he wants to focus on and where he will lead the case.⁴² The defence counsel, however, has to respond and refute the opposition’s points. This made preparation more difficult, and possibly longer, since the defence advocate had to prepare for all eventualities with a strong understanding of the facts and issues, in order to refute quickly and appropriately.

On occasion an advocate could be called upon to speak immediately on behalf of a client, at odd hours, with either very little or absolutely no time to prepare his thoughts. In the course of considering this possibility and how an advocate could best cope, Quintilian acknowledges that there were “innumer­abiles” (many) occasions when it could occur.⁴³ Our information is such, however, that we do not have a clear understanding of what events could necessitate such immediate participation. Quintilian’s choice of vocabulary when describing these sudden appearances provides some hints but nothing conclusive. An advocate could be called upon to speak immediately: “apud magistratus" (before the magistrates), “in iudiciis" (in the courts), “in medio foro” (in the middle of the forum), or “repraesentatis iudiciis" (at hearings convened suddenly).⁴⁴ While it is clear from these general examples that the venues were diverse, we have very little information on specific occasions of such immediacy. In the one such case of which we know, Fronto was summoned by one of his clients one evening after dinner to appear immediately in the court of the Praetorian Prefect, Marcius Turbo.⁴⁵ It is clear from Cassius Dio’s account that the occasion was very sudden. However, Fronto likely was not entirely unprepared, since he seems to have been engaged by this client previ­ous to that evening and we can therefore assume that he at least knew of the issues involved even if he had not completely prepared his case. The apparent inconsistency of Turbo’s court hours is interesting. That Fronto makes a point of greeting Turbo with the evening salutation suggests that the latter’s evening sessions were somewhat unusual in comparison to other magistrates.

A very likely occasion when advocates may have been forced to speak ex tempore before a magistrate was at preliminary hearings, the in iure portion of a private case. In the previous chapter, we considered the possibility of litigants coming to Rome without an advocate and finding one upon arrival. When examining the locations of the courts we saw that the courts of magistrates, such as the praetor urbanus and the praetor peregrinus, may have been very impromptu and unorganised. It certainly would have been possible for a litigant and his advocate to be told suddenly to state the case when unprepared. We have already encountered Pompeius Auctus, who likely made his career speaking for clients before these magistrates in the Forum of Augustus with possibly little or no preparation time.⁴⁶

Even though an advocate might suddenly need to speak at a hearing with­out time to examine the witnesses or write his speech, Quintilian tells us that “in iudiciis ac foro”, “in the courts and the forum”, a “breve tempus”, “brief time” was almost always provided for the advocate to become acquainted with the facts of the case. Quintilian also tells us, however, that there were rare occasions when even this time was not given.⁴⁷ His advice to an advocate caught in this nightmare: speak slowly and think on your feet. The style of purposeful deliberation will convey an air of deep thought and reflection; however, the advocate must make sure the impression is one of weighty con­sideration, not hesitation.⁴⁸

Having formed a general idea of how an advocate prepared for a case as well as the amount of time required, we must now ask how long an advocate spent in court itself for any given case. The evidence is less than ideal. However, we can identify numerous factors that could have affected the length of a case, and thus form some understanding of the advocate’s invest­ment of time within the courtroom.

The court calendar for the Roman year must first be briefly considered. During the late Republic, April and the early part of May marked a break for the senate and the law courts, a practice that likely continued into the imper­ial period.⁴⁹ Augustus added an additional two-month holiday in November and December, and so the court calendar was divided into two terms, the win­ter running from January to April and the summer running from mid-May to November.⁵⁰ Claudius adapted this calendar by removing one of the two holi­day periods to make the court season continuous.⁵¹ Another passage from Suetonius suggests that Claudius in fact cancelled the April—May holiday: Galba, he says, “concessum a Claudio beneficium, ne hieme initioque anni ad iudican- dum evocarentur, eripuit”, “denied the gift given by Claudius of not being summoned for court in the winter and the beginning of the year”.⁵² Clearly then, Claudius did not cancel the November/December holiday. But Suetonius’ comments suggest that Claudius had also made changes to the win­ter break; at some point he extended it to include part or all of January and perhaps part or all of October, to compensate for removing the April—May break. We can thus propose that from some time during the reign of Claudius until that of Galba, the courts met continuously from late January/February until October. If we take Suetonius at his word we must conclude that Galba removed only the changes that Claudius made to the winter break since the November/December break had been put in place by Augustus. Thus, from Galba’s day, the courts met continuously from January until November.⁵³

This did not mean that all courts ran day in and day out during this ten- month period or that advocates could be in court any of these days. The evidence leaves us unsure of which courts took these holidays. The quaestiones perpetuae may have been the only ones so lucky; or the holidays may have applied to public courts, or to all public and private courts together. As cases were bro­ken up into two or more hearings, there is also the possibility that some stages of the litigation process would continue into holidays while others would not.

To further complicate matters the individual days of the Roman calendar were categorized as dies fasti, dies nefasti, and ludi: days on which business could — or could not — take place, and days set aside for games. During the republican period at least some court activities could not take place on dies nefasti or ludi.⁵⁴ Over the course of the late republican and imperial periods, however, the holidays observed by the courts were gradually reduced because the number of available days was becoming quite inadequate to address the volume of legal business. On several occasions during the imperial period we hear of various emperors broadening the court calendar in an attempt to alle­viate backlogs caused either by normal court business or because new legal rules caused a sudden influx of cases. Augustus apparently added 30 days, which previously had been taken up with games, to the court term and, in addition to cancelling one of the extended holiday periods, Claudius removed several individual vacation days.⁵⁵ By the reign of Marcus Aurelius, the num­ber of days available to the courts had risen to 230 days per year.⁵⁶ It appears, therefore, that not long into the imperial period a festival or ill-omened day did not guarantee that legal business would halt.

Many officials also did not observe these holidays, due to either legal cus­tom or personal choice. It appears, for example, that the praetor could be approached on holidays.⁵⁷ Both Claudius and Septimius Severus apparently heard cases on days of festivals or ill-omen.⁵⁸ Dio states that Severus would forego court only for a great festival.⁵⁹ Concerning private cases, it appears that if all the parties involved — obviously including advocates — agreed the case could be heard on any chosen day.⁶⁰

Irregular cancellations could also affect the day-to-day court schedule. In 6 the courts were recessed due to a serious famine.⁶¹ In July/August of 37 Gaius closed the courts to guarantee that the public would attend the theaters.⁶² The death of an emperor or member of the imperial family would also result in sud­den closures.⁶³ We also know that at least some court activities were suspended for the public funeral of the praefectus urbi L. Volusius Saturninus, who died in office in 56.⁶⁴ Such cancellations could easily have disrupted an advocate’s over­all workload if he had several cases scheduled for the coming days and weeks, and suddenly one or several were pushed back due to court cancellations.

Some periods of the ten-month session seem to have been busier than oth­ers, and we can assume that factors ranging from the yearly flow of business and trade to the weather (many of the upper class abandoned the city during the summer heat) must have affected an advocate’s monthly workload. July appears to have been a normally quiet month in the courts. Pliny tells us that he scheduled a public reading during that month on the assumption he would not be called to court, only to be summoned unexpectedly.⁶⁵ The heat could no doubt have made it uncomfortable; Claudius’ overzealousness for judging cases is satirized by his willingness to hear cases in July.⁶⁶ Juvenal condemns an advocate for wearing transparent chiffon in court, to which the advocate responds, “sedlulius ardet, aestuo”, “but July is hot, I’m boiling”.⁶⁷

At the other end of the spectrum Pliny comments that he often had cases pending in the winter.⁶⁸ This statement certainly rings true of Pliny’s involvement in repetundae cases, which notably all came to trial in the winter. This was a result of the typical procedure. Governors usually returned from their provinces by the end of the summer, and provinces who felt wronged by their exiting governor likely laid charges sometime in the fall, no doubt eager once they were safe from retaliation. A letter of Pliny supports this sequence of events. Writing to a friend, he reports that he has recently refused to act for both the province of Baetica and the charged ex-governor, and then remarks that he will be back in Rome by the middle of October. From this we can conclude that the two parties to the dispute were seeking representation some time in September or the early days of October. With the option of taking up to a year to gather witnesses and evidence, such a trial could have begun as late as the fall of the next year.⁶⁹

Looking at the court calendar from the perspective of an advocate, how­ever, one quickly realises that very few days were guaranteed to be free of legal business. Thus, if involved in private cases — which likely constituted the majority of an advocate’s activities, unless he specialized in public cases — an advocate could find himself before a magistrate or court virtually on any day.

* * *

The amount of time within the courtroom that an advocate had to dedicate to any specific case (which could involve both preliminary hearings and the full hearing of the case itself) also varied. All preliminary hearings, whether for pri­vate or public cases, ideally involved the advocate’s appearance and then, of course, the full hearing of the case demanded still more courtroom time. Little is known of what actually occurred at the in iure portions of private cases and so it is difficult to determine how much of the advocate’s time would have been required then, but the advocate likely would have been present and involved, since Quintilian gives specific advice for this setting.⁷⁰ The various preliminary hearings for public cases also involved multiple court appearances by the advo­cate. Unfortunately, the absence of detailed accounts of private cases, beyond the reports of Gellius we have already discussed, means that the amount of court­room time most cases required must be reconstructed from meagre sources.

We have some information concerning the length of legal hearings in three courts, those of the praefectus urbi, the emperor, and the centumviri. In one of his satires Juvenal urges his reader to attend the court of the praefectus urbi for a few days if he wants to put his own troubles in perspective.⁷¹ The sense of the pas­sage is clear, that in the course of a few days this court would hear a number of different cases. While some of these may have come through this court in a pre­liminary stage, we know from Pliny and Tacitus that cases could be heard there entirely as well.⁷² Pliny describes his participation as an assessor for one case and the tone of the letter suggests that the matter was concluded in a day.⁷³

The length of hearings in the court of the emperor varied widely. At Centum Cellae, Trajan and his assessors, one of whom was Pliny, heard two cases in two days. A third matter was supposed to be heard on the third day, but not all the litigants appeared so Trajan postponed the matter to a later date.⁷⁴ We find the other extreme in the court of Marcus Aurelius. According to Dio, Marcus Aurelius would often spend 11 or 12 days trying a case, in an effort to ensure strict justice. Dio mentions his participation in the prelimi­nary hearings as well, so conceivably, the number of days reported may have included those hearings.⁷⁵ If this genuinely was Marcus Aurelius’ regular practice, we must conclude that he in fact heard a very small number of cases.

The centumviral court apparently met on alternating days during a case. On one occasion Pliny went to hear the speech of his co-counsel in an ongoing case before this court. He was scheduled to speak on the next court day and his language implies that it was going to be two days later, rather than the next day, and that this was customary.⁷⁶ It is thus clear that centumviral court cases, if not completed in one day — probably a very rare event, since the court dealt primarily with thorny inheritance issues — would extend over at least three days with a day off in the middle that could be used for preparation, and likely continued to alternate in this way until the case was closed.

To estimate the number of court days needed for a full hearing of a public case after the preliminary hearing, we must look to our understanding of the procedure followed in the quaestiones perpetuae. As mentioned above, six and nine hours respectively were allotted to the prosecution and the defence for presenting their speeches, which thus most likely occupied two full days of the court’s time, though it must be remembered that in complicated cases the assigned times could be extended. The speeches were followed by presenta­tion of the evidence, which included both the reading out of any relevant documents and the examining of witnesses. These portions of the trial had no time restrictions, and no doubt in a case of importance required a number of days. Such investment of time is certainly found in repetundae and maiestas cases recorded by Tacitus and Pliny.⁷⁷ While we cannot rely heavily on this information, since the cases were held in the senate, and therefore were of an even more exceptional nature, it is not extreme to conclude that some similar­ity existed between the length of these full hearings and those of the quaestiones, where repetundae cases were originally heard.

It thus appears that the amount of time an advocate would have spent in the courtroom for each case varied widely. If he were representing his client in a preliminary hearing before a city magistrate, he might have dedicated just a very small part of his day to that case. At the other extreme, in hearings before the quaestiones perpetuae the advocate might have spent anywhere from perhaps seven to 20 or more days in court.

In the foregoing I have assumed that by calculating the number of days it took to hear a case from beginning to end it is possible to determine the num­ber of days an advocate spent in court for that case. Evidence suggests, however, that such an assumption must be qualified. Litigants often had teams of advocates representing them, and we do hear of such groups being within the courtroom.⁷⁸ But were all the advocates physically present for the entire case? Perhaps not. It appears that some developed their skills to become experts in specific types of speeches. Albucius Silus when involved in a case only gave theperoratio, the closing speech.⁷⁹ Quintilian was known as an exposition expert, which meant he was particularly good at setting out the various facts of a case.⁸⁰ Having completed their specific presentations, these advocates apparently did not feel compelled to remain in the court while the other advocates spoke, but rather immediately left the court.⁸¹ Above we saw that Pliny was not at his client’s side for at least one day of his case in the cen­tumviral court, since Pliny notes that he went to the centumviral court to hear the speech of his co-counsel. The tone of the letter clearly suggests that Pliny was in the courtroom solely as a member of the audience, and that he did not sit on the advocates’ benches. We must assume, therefore, that the advocate speaking that day was indeed Pliny’s co-counsel because had Pliny been the first to speak for the opposing side, he most likely would have been on the benches, since his speech had to directly respond to that of his oppo­nent. His more relaxed attendance suggests he was there simply to hear what his colleague was saying so as to guarantee no unnecessary repetition.⁸²

This behavior may seem to us highly counterintuitive. A team of particu­larly skilled and famous advocates lined up on a bench or two surely would have made an impact, in a society where public appearances played an impor­tant role in advertising one’s influence and alliances. It is tempting to assume that at least the “lead” advocate would have been present for the whole but, again, we have no direct evidence. Practicality seems to have outweighed the visual impact of such a group display. Appearing only to make his specific speech meant that an advocate could participate in several other cases at the same time. We certainly must take this angle on Cassius Severus’ practice of delivering two private or one public speech per day. It may also have been common practice for all of the advocates slated to speak for a specific litigant to appear in the courtroom, on the benches surrounding the litigant, at the very beginning of the case, which seems to be the occasion Pliny describes concerning Attia Viriola’s case, and then in subsequent meetings of that court only to appear when it was one’s turn to speak.

While the evidence does not allow for exact calculations of the hours an advocate put in for each case, we are certainly left with the impression that his investment of time in a case could range widely from perhaps a week to over a year. He had to prepare the case and argue it through various stages and per­haps numerous postponements.⁸³ Fronto, for instance, was involved in an exceedingly drawn-out case before the emperor’s court. In the extant frag­ments of his speech he describes with great vexation the excuses one of the litigants kept providing for why he could not get to Rome from Asia: the winter sea, the equinoctial gales, the brutally hot summer, his seasickness, and the coincidence of fall harvest season. The case was postponed, and then postponed again for a subsequent two months. Fronto’s speech appears to have been delivered at the hearing after the two-month delay, and the non­appearance of the other party.⁸⁴ It would appear that similar such experiences were common enough to inspire satire. Juvenal tells us that delays were becoming so excessive that litigation was exasperating:

sed tum quoque mille ferenda

taedia, mille morae; totiens subsellia tantum sternuntur, iam facundo ponente lacernas Caedicio et Fusco iam micturiente parati digredimur, lentaque fori pugnamus harena.

And even then a thousand wearinesses and a thousand delays have to be endured; so often [we are] prepared, the benches are just about set out, now eloquent Caedicius lays down his mantle, now Fuscus goes to urinate, [but] we adjourn, we fight leisurely battles in the forum.⁸⁵

Frustration could ensue, and advocates did, on occasion, express the feeling that some cases ate away more days than was warranted.⁸⁶ Martial calls Gargilianus mad, because he had been pressing the same lawsuit in the courts for twenty winters.⁸⁷ We hope this is humour through hyperbole. If not (and Martial does not tend to exaggerate unduly), then an advocate certainly had to be accepting cases with his eyes open to the possible length of his commitment.

It is possible to step back from the individual cases that advocates under­took, to construct a picture of their daily activities in Rome. One cautionary note must be issued: advocates’ motivations for arguing cases were variable, therefore much depends on whether the individual saw advocacy as a serious career or as a hobby. Did he have what we would call a “practice”, or did he take cases only for friends who approached him? An advocate’s ability was also a factor. If he was a good speaker, his circle of “friends” could quickly expand, and suddenly he could find himself with a practice. The workload for an advo­cate among the lower classes could also vary greatly according to his ability and availability. We have seen, however, a number of relatively low-status advocates with thriving practices. The discussion that follows will assume an advocate with a favorable professional reputation and consequently a practice.

The workday

The time of day most often associated with legal activity was between the third and fifth hours (approximately 9—11am), which we can designate as the peak period of the court day.⁸⁸ Of the seven extant vadimonia (bail) tablets that name a time for the disputing litigants to meet in the Forum of Augustus, all but one specify either the third, fourth, or fifth hour.⁸⁹ The third hour was chosen most often.⁹⁰ Martial likewise links this period with the courts in his description of the typical day:

Prima salutantes atque altera conterit hora,

exercet raucos tertia causidicos,

in quintam varios extendit Roma labores, sexta quizes lassis, septima finis erit...

The first and second hours tire well-wishers,

the third employs hoarse advocates,

Rome extends the varied labours into the fifth,

the sixth will be rest to the weary, the seventh, the end....⁹¹

In Horace’s account of being caught by a bothersome acquaintance in the Forum Romanum, the acquaintance is contemplating not showing up at his hearing. In actuality, he was likely considering jumping his bail, the result of not meeting the criteria of a vadimonium. He comes across Horace at the beginning of the fourth hour, and during their discussion his opponent spots him; no doubt the opponent had already been to the meeting place agreed upon in the vadimonium and was hunting about for the recalcitrant.⁹² Martial also speaks specifically of vadimonia set for the fourth hour, when he com­plains of how a sycophant, hoping to gain a dinner invitation, arrives far too early “cum modo distulerint raucae vadimonia quartae", “when they only just adjourned the vadimonia of the hoarse fourth hour”.⁹³

Although Martial’s description may give the impression that the courts opened only in the third hour, it is more likely that they opened at dawn, con­sidering the time at which standard public business commenced. While the majority of the vadimonia appoint the third hour, one vadimonium indicates the second.⁹⁴ The terms of vadimonia could be fulfilled even if the courts of the praetors were not open; the two parties fulfilled the agreement merely by appearing before each other. However, surely people chose times for their vadimonia at which they believed it would be possible, after meeting each other, to immediately approach the necessary court with their business. The vadimonium set for the second hour, if interpreted this way, thus suggests that

typically the courts were open before or on the second hour. Furthermore, we must remember that vadimonia are connected only with the courts of the prae­tors. As the various courts together made up the legal branch of Roman government it is likely that some effort was taken to standardize the hours of their workday, both amongst themselves and with the other branches of gov­ernment. The senate is one such comparable body and the evidence suggests that they began their meetings at dawn.⁹⁵

The closing times of the courts varied more widely. Martial gives both the end of the fifth and of the tenth hour as the close of judicial activities in the fora⁹ How to reconcile such a wide variation? It may be that the various courts in the three fora, while beginning at more or less the same hour, set their clos­ing times individually, depending on their particular procedures, the current volume of business, or the zealousness of the presiding magistrate or judge.

The quaestionesperpetuae, with set maxima of six and nine hours for speeches, might have varied their closing hour according to where they were in a specific case and the mood of the judges on any given day. If the prosecution finished speaking at the end of the seventh hour and there was only an hour or two of daylight left, the presiding magistrate would likely have closed the hearing for the day, with the defence beginning fresh at the next meeting. Philippus, whom Horace describes as “causis... agendis clarus", “famous for pleading cases”, perhaps had been just so dismissed when Horace tells us that, returning from the Forum at the eighth hour, he had already finished for the day.⁹⁷

The praefectus urbi evidently had a longer day. Juvenal describes his court as running “a lucifero donec lux occidat”, “from dawn until dusk” though again we must be careful to allow for some exaggeration on the satirist’s part.⁹⁸ Talbert, in his study on the possible length of a court day in the senate, provides cal­culations for the amount of daylight Rome received throughout the year. Natural light would have allowed the praefectus urbi to hold court for periods varying from approximately nine modern hours in January to 15 hours in June.⁹⁹ Magistrates, like the senate, did not even need daylight. We have already discussed the occasion when Fronto spoke before the praefectus praetorio after dinner one evening; Cassius Dio’s comment that Fronto was returning from dinner “εσπέρας... βαρείας”, “in the very late evening” suggests that darkness had already fallen.¹⁰⁰

The praetor urbanus and praetor peregrinus, like the praefectus urbi and the prae­fectus praetorio, probably put in long days as well. Since a great deal of the preliminary work of a dispute funnelled through the praetors before the cases were assigned to the appropriate court, the pressure on these magistrates to prevent their courts from becoming bottlenecked likely forced them to make the most of every available day. Since their involvement in a case did not include elements requiring blocks of time (like the hours assigned to prosecut­ing and defence counsel), but rather consisted of far more interactive discussion, it is probable that the praetors ran through as many cases as possi­ble within the business day.

Two pieces of evidence suggest that the praetors’ courts were open until at least the tenth hour on occasion. Martial’s fan, Pompeius Auctus, the “ambu­lance-chasing” advocate already discussed who spent his day in the Forum of Augustus picking up cases, is described by Martial as being tied up with work until the tenth hour.¹⁰¹ This corresponds nicely with a document from the Tabulae Sulpiciorum, which refers to a vadimonium that set a meeting for the ninth hour.¹⁰²

Emperors not surprisingly appear to have managed their court schedules in a wide variety of ways. Septimus Severus had a rather short court day, accord­ing to one report hearing cases in the morning until noon.¹⁰³ Marcus Aurelius, on the other hand, apparently heard cases until the eleventh hour when he was still only Caesar, and during the night as well when he was emperor.¹⁰⁴ The hours of operation of the imperial court were entirely at the emperor’s discretion and, we must assume, depended greatly on the degree of duty any specific emperor felt toward the smooth running of the legal system.

One category of court perhaps felt less pressure to begin its day at dawn. The unus iudex, the single judge, appointed by the praetor to hear specific cases, was free to set the time of the hearing by agreement with the parties to the dispute and we can assume that they chose times that worked specifically for them. If the morning did not work for one party, they could meet in the afternoon or evening.

* * *

Let us return to our advocate. His workday then started at dawn with the arrival of clients and well-wishers.¹⁰⁵ This custom was certainly not restricted to the homes of advocates, but was a general feature at the homes of all with some public influence.¹⁰⁶ Martial and Maternus both mention clients who wake their advocates in the morning, some even with pre-dawn greetings.¹⁰⁷ These clients were wise, since the advocate might have been appearing at some court that commenced at dawn. Those litigants eager to lay charges were probably at the appropriate court as soon as it opened. Thus, we can explain Pliny’s sudden departure to represent a client on the morning of his planned reading.¹⁰⁸ The rest of the advocate’s day up to the ninth or tenth hour, if not even later, could find him within the courtroom. If he did not have cases requiring his presence in court he no doubt spent the hours prepar­ing upcoming cases. While the majority of courts might not have met during the evenings, the advocate likely also spent time then preparing and review­ing. Pliny’s description of his average winter day included an evening going over upcoming cases.¹⁰⁹ Martial tells his epigrams to seek Pliny only late at night, after he has finished his legal work.¹¹⁰ We must assume then that each day involved a different mix of courtroom appearances and preparation at home, resulting in an irregular schedule. With each type of court requiring a different number of preliminary hearings, and each case demanding variable amounts of time for preparation — not to mention numerous potential delays — the advocate’s daily activities would have varied constantly, depending upon the number and nature of the cases he was handling at the time.

Total workload

The overall caseload of any given advocate no doubt varied according to his abilities; we must assume that our evidence, by its very nature, largely records successful men or, in some extreme cases, quite the opposite. It is already clear enough that a career in advocacy could claim most of one’s wak­ing hours. At one point in the Institutio Oratoria, Quintilian describes advocacy as a profession in which every minute was taken up with the affairs of others.¹¹¹ Martial complains to his advocate friend that every time he comes to visit, the friend is either not at home or busy with his cases.¹¹² This sounds very similar to his description of Pliny as one who spent his whole day with cases.¹¹³ We must allow for some embellishment in these reports, but nevertheless the impression remains of days primarily consumed by work. Both Quintilian and Aulus Gellius lament that practising advocates rarely have the time even to take a walk.¹¹⁴ As we saw earlier, many advocates were so busy that they were forced to compress their preparation time by writing out only sections of their speeches.¹¹⁵

We have very little specific information for the workloads of any individ­ual advocates. By chance, however, Seneca the Elder tells us the work schedule of Cassius Severus, a well-known advocate of the early Empire. He would give two private speeches daily, one before noon and one after, or one public speech.¹¹⁶ Even though his participation was likely limited to providing a specialized speech rather than having charge of the whole case, these numbers mean that in two days he could have spoken in up to four cases. Quintilian, very much in passing, suggests this was not so unusual since he says advocates often spoke in several cases in succession.¹¹⁷

Interpreting these comments of Seneca and Quintilian requires some care. How did Cassius Severus manage to prepare for each case if he was fol­lowing this type of schedule for several two-day stretches in succession — something that Seneca seems to imply? Such steady participation would have required a large amount of preparation time. Cassius Severus, however, did have a reputation (which is mentioned in the Dialogus) for not always preparing his speeches as thoroughly as his colleagues did.¹¹⁸ The logistical considerations prompted by Quintilian’s statement also leave one wonder­ing how Cassius managed to arrange the court schedules to accommodate his participation in all these cases. Such active involvement would have necessitated not only a great deal of organization on Cassius’ part, but also some flexibility from the courts.