Quintilian Institutio Oratoria 12.9

[1] As regards the points to be observed in the actual pleading, I have dealt with these in every portion of this work, but there still remain a few on which I must touch as being specially appropriate to the present place, since they are concerned not so much with the art of speaking as with the duties of the advocate. Above all it is important that he should never, like so many, be led by a desire to win applause to neglect the interest of the actual case.

[2] It is not always the duty of generals in the field to lead their armies through flat and smiling country: it will often be necessary to cross rugged mountain ranges, to storm cities placed on inaccessible cliffs or rendered difficult of access by elaborate fortifications. Similarly oratory will always be glad of the opportunity of manœuvring in all its freedom and delighting the spectator by the deployment of its full strength for conflict in the open field;

[3] but if it is forced to enter the tortuous defiles of the law, or dark places whence the truth has to be dragged forth, it will not go prancing in front of the enemy's lines nor launch its shafts of quivering and passionate epigram of the fashion that is now so popular, but will wage war by means of sap and mine and ambush and all the tactics of secrecy.

[4] None of these methods win applause during their actual execution: the reward comes after they have been carried to a successful termination, when even the most ambitious will reap a richer recompense than they could ever have secured by other means. For so soon as the thunders of applause awakened among their admirers by these affected declamatory displays have died away, the glory of true virtue rises again with renewed splendour, the judges do not conceal who it is has moved them, the well-trained orator wins their belief and oratory receives its only genuine tribute, the praise accorded it when its task is done.

[5] The old orators indeed used to conceal their eloquence, a method which is recommended by Marcus Antonius, as a means of securing that the speaker's words should carry conviction and of masking the advocate's real designs. But the truth is that the eloquence of those days was capable of concealment, for it had not yet attained that splendour of diction which makes it impossible to hide its light under a bushel. Therefore artifice and stratagem should be masked, since detection in such cases spells failure. Thus far, and thus only, may eloquence hope to enjoy the advantages of secrecy.

[6] But when we come to consider the choice of words, the weight essential to general reflexions and the elegance demanded by figures, we are confronted by elements which must either strike the attention or be condemned to nonexistence. But the very fact that they strike the attention is a reason why they should not flaunt themselves obtrusively. And, if we have to make the choice, I should prefer that it should be the cause, and not the orator, to which we award our praise. Nevertheless, the true orator will achieve the distinction of seeming to speak with all the excellence that an excellent case deserves. One thing may be regarded as certain, that no one can plead worse than he who wins applause despite the disapproval meted out to his case. For the inevitable conclusion is that the applause must have been evoked by something having no connexion with the case.

[7] Further, the true orator will not turn up his nose at cases of minor importance on the ground of their being beneath his dignity or as being likely to detract from his reputation because the subject matter does not allow his genius full scope. For the strongest reason for undertaking a case is to be fund in our duty towards our clients: nay, we should even desire the suits in which our friends are involved to he as unimportant as possible, and remember that the advocate who gives an adequate presentment to his case, has spoken exceeding well.

[8] But there are so he who, even although the cases which they have undertaken give but small scope for eloquence, none the less trick it out with matter drawn from without and, if all else fails, fill up the gaps in their case with abuse of their opponents, true if possible, but false if necessary, the sole consideration that weighs with them being that it affords exercise for their talents and is likely to win applause during its delivery. Such conduct seems to me so unworthy of our perfect orator that, in my opinion, he will not even bring true charges against his opponents unless the case demand.

[9] For it is a dog's eloquence, as Appius says, to undertake the task of abusing one's opponent, ¹ and they who do so should steel themselves in advance to the prospect of being targets for like abuse themselves, since those who adopt this style of pleading are frequently attacked themselves, and there can at any rate be no doubt that the litigant pays dearly for the violence of his advocate. But such faults are less serious than that which lies deep in the soul itself, making the evil speaker to differ from the evil doer only in respect of opportunity.

[10] It is not uncommon for the litigant to demand a base and inhuman gratification of his rancour, such as not a single man among the audience will approve, for it is on revenge rather than on protection that his heart is set. But in this, as in a number of other points, it is the duty of the orator to refuse to comply with his clients' desires. For how can a man with the least degree of gentlemanly feeling consent to make a brutal attack merely because another desires it?

[11] And yet there are some who take pleasure in directing their onslaughts against their opponents' counsel as well, a practice which, unless they have deserved such attacks, shows an inhuman disregard of the duties incumbent on the profession, and is not merely useless to the speaker (since he thereby gives his opponent the right to reply in the same strain), but contrary to the interests of his case, since it creates a hosthe and antagonistic disposition in the advocates attacked, whose eloquence, however feeble it may be, will be redoubled by resentment at the insults to which they have been subjected.

[12] Above all, it involves a complete waste of one of the most valuable of an orator's assets, namely that self-restraint which gives weight and credit to his words, if he debases himself from an honest man into a snarling wrangler, directing all his efforts not to win the goodwill of the judge, but to gratify his client's spite.

[13] Often too the attractions of freedom of speech will lure him into a rashness of language perilous not merely to the interests of the case, but to those of the speaker himself. It was not without good reason that Pericles used to pray that no word might occur to his mind that could give offence to the people. But what he felt with regard to the people, I feel with regard to every audience, since they can cause just as much harm to the orator as the people could ever do to Pericles. For utterances which seemed courageous at the moment of speaking, are called foolish when it is found that they have given offence.

[14] In view of the tact that there is commonly a great variety in the aims which pleaders set before themselves and that the diligence shown by some is branded as tedious caution, while the readiness of others is criticised as rashness, I think that this will be an appropriate place to set forth my views as to how the orator may strike the happy mean.

[15] He will show all the diligence of which he is capable in his pleading. For to plead worse than he might have done, is not merely an indication of negligence, but stamps him as a had man and a traitor, disloyal to the cause which he has undertaken. Consequently he must refuse to undertake more cases than he feels he can manage.

[16] As far as possible he will deliver only what he has written, and, if circumstances permit, only what he has, as Demosthenes says, ² carved into shape. Such a practice is possible in first hearings and also in subsequent hearings such as are granted in the public courts after an interval of several days. On the other hand, when we have to reply on the spot, it is impossible to prepare everything: in fact for the less ready type of speaker, it may, in the event of his opponents putting forward arguments quite other than those which they were expected to advance, be a positive drawback to have written anything.

[17] For it is only with reluctance that such speakers will under such circumstances consent to abandon what they have written, and throughout their pleading keep looking back and trying to discover whether any portion of their manuscript can be saved from the wreck and interpolated into what they have to improvise. And if they do make such interpolations, the result is a lack of' cohesion which is betrayed not merely by the gaping of the seams where the patch has been unskilfully inserted, but by the differences of style.

[18] Consequently, the vigour of their eloquence will be hampered and their thought will lack connexion, each of which circumstances reacts unfavourably upon the other, since what is written trammels the mind instead of following its lead. Therefore, in such pleadings we must, as the rustic adage says,

[19] For since the case turns on the propounding and refutation of arguments, it is always possible to write out what we propose to advance on our own behalf, and similar preparation is also possible with regard to the refutation of such replies as are absolutely certain to be made by our adversary: for there are times when we have this certainty. But with regard to all other portions of our speech, the only preparation that is possible in advance consists in a thorough knowledge of our case, while there is a second precaution which may be taken in court, consisting in giving our best attention to our opponent's speech.

[20] On the other hand, there is much that may be thought out in advance and we may forearm our mind against all possible emergencies, a course which is far safer than writing, since a train of thought can easily be abandoned or diverted in a new direction. But whether we have to improvise a reply, or are obliged to speak extempore by some other reason, the orator on whom training, study and practice have conferred the gift of facility, will never regard himself as lost or taken at hopeless disadvantage.

[21] He stands armed for battle, ever ready for the fray, and his eloquence will no more fail him in the courts than speech will fail him in domestic affairs and the daily concerns of life: and he will never shirk his burden for fear of failing to find words, provided he has time to study his case: for all other knowledge will always be his at command.