As Aristotle notes (Rhet. 1.1.4), those extraneous matters (slander, pity and anger) that preoccupied earlier compilers of rhetorical handbooks were aimed at putting the dicast and judge in a certain frame of mind. Aristotle uses two terms, dikastes and krites (judge), to describe essentially the same person and his role in a court of law. The term dicanic, that is forensic, comes from the dicast, the individual who sat in the Athenian court both as judge and juror of the case. He decided both the law and facts of the case, based on what he heard from the litigants, without receiving instruction from the magistrate who simply presided over the case in a formal manner.10 It was to that individual that litigants directed their speeches and with whom rhetorical handbooks were so much concerned.
The preoccupation of early rhetoricians with judicial oratory arose out of a pressing demand. As Aristotle noted in the case of Syracuse, the demand for formal precepts arose out of litigation associated with the democracy, and in Athens it was the democratization of the legal system that directly led to a demand for rhetoric there. After the reforms of Ephialtes in 462, most judicial matters were decided by panels of ordinary citizens, who reached their decisions after hearing speeches by the two litigants. Because each litigant was expected to plead his own case before his peers, there was a real need to acquire some knowledge of judicial oratory which would allow him to deliver a speech that could sway the dicasts, who decided his fate. Failure to understand and effectively appropriate the language of the court could result in significant financial loss or worse yet death (as was Socrates’ fate).
Both Plato’s Apology and Aristophanes’ Wasps make clear that there was a growing expectation on the part of the dicasts that litigants behave and speak in a certain manner. Because Socrates is ‘completely foreign to the language of the courts’ (atechnos oun xenos echo tes enthade lexeos), the dicasts will only hear things said at random in whatever words occur to him (Apology 17cd). Plato’s choice of words here is deliberate; the adverb atechnos carries a double sense: Socrates’ foreignness to and unfamiliarity with the language of the court comes from him being atechnos, completely artless in his presentation. He is, as he characterizes himself, a foreign speaker who fails to understand and appreciate the intricacies and subtleties of another language and so cannot effectively use its idiom. Idiomatic usage of court language called for, as Socrates says of his accusers, speeches that have been carefully crafted, decked with fine words and phrases (Apology 17c). That kind of speak is so persuasive that Socrates claims to have nearly forgotten who he was, and he wonders just how the dicasts’ passions have been affected by his accusers (Apology 17a). Philocleon in the Wasps knows this exactly, and he expects, when he sits in the court, to hear all sorts of words aimed at securing acquittal; there will be flattery of the dicasts, pleas of poverty to elicit pity, fanciful stories told, funny little tales from Aesop and even some joking to raise a laugh and release his anger. If all else fails the defendant will parade his small children and aged father before him, all in the hopes of having the dicast relent (Wasps 561-574). In all cases both the speech and the antics of the court were aimed at putting the dicast in a certain frame of mind that would best benefit the speaker. Socrates, however, refuses to do any of this; he will not beg and beseech the dicasts or parade before them his children to elicit their pity, as some of dicasts themselves may have done in earlier cases of their own of far less importance. Consequently some dicasts may become enraged and vote in anger against him (Apology 35c). Anger was an emotion that a properly constructed speech could arouse, though not against oneself but against one’s opponent. Indeed, anger was regarded as legitimate when it led to justice and satisfaction for a wrong done (Arist. Rhet. 2.2.1, 2.4.31).11
To help fashion a speech in the appropriate language of the court, one could turn to the services of a logographer, a speechwriter who would provide his client with a written speech for delivery in court. It has been suggested that little or no collaboration went on between the logographer and his client; after the initial consultation, the logographer composed the speech on his own ‘in his own words and with the exact degree of emphasis and emotional appeal that he considered necessary’.12 Since the litigant was expected to maintain an illusion of spontaneity, he had to deliver the speech completely from memory, something which could prove challenging.13 Alci-damas (On Sophists 18) emphasizes the difficulty of memorizing a whole written text, which, he says, ‘is necessary to commit to memory and learn precisely both the arguments and the words and the syllables’.14 He notes the embarrassment of forgetting parts of the speech during the delivery and instead recommends extemporizing. This difficulty is parodied in Aristophanes’ Knights (347-349): in order to win his trivial little case against an alien, the sausage-seller must stay up all night going over and over his speech, repeating it on the streets, drinking only water and rehearsing it to an audience of exasperated friends. Not only would a litigant’s verbal stumbling in court be embarrassing but also it could be costly, as the inadequacy of his words could suggest to the dicasts that the litigant was guilty of hiding something. As Euxitheus notes in his opening statement (prooimion) in defence of the murder of Herodes, many innocent people, who lacked speaking ability, were condemned because they were unconvincing in arguing the truth, whereas many others, who were able speakers, were acquitted because they were convincing with their lies. He petitions the dicasts to attribute his speaking mistakes to inexperience and not to injustice (Ant. 5.3-5). There was, then, a real need to deliver a polished speech and the speechwriter could be just the ticket.
But the services of a logographer did not come cheap. For those who could not afford a speechwriter, there were books circulating in the Agora that could be purchased rather cheaply.15 Some included, as we noted, discussions on the parts of a judicial speech; others contained collections of commonplaces16 or examples of prooimia and epilogoi which could be utilized in composing one’s own speech for trial.17 At the very least a potential litigant could go down to the courts and observe proceedings and learn first hand what to say and not to say in order to win over the dicasts. Spectators were always present at trials, and if an Athenian had himself done dicastic duty, he would know something of what it took to win a case, experiencing first hand the kinds of arguments and emotional appeals that most affected his decision. Again the reaction of the dicast is of central importance to success in a case, and it is to him and the context in which he heard a forensic speech that we now turn more specifically.
As we have stressed, the rhetoric of a judicial speech was directed at the dicasts, who decided the case. In Athens dicastic panels were comprised of ordinary citizens who offered their services for the year. The Athenians had adopted the practice of selecting by lottery 6,000 citizen men to serve on jury panels for the year, and it was quite possible that many of the same men served from year to year and in time acquired a degree of rhetorical and legal sophistication.18 This seems to be the comic implication of Philocleon’s expectations of what he will hear and see in court. Dicastic panels on which men like Philocleon served were large by modern standards. In private cases, the panels consisted of 201 or 401 dicasts: the greater the compensation demanded by the plaintiff, the larger the required jury. In public suits, which could involve cases such as aggravated assault (hybris) or treason and carry with them severe penalties, the smallest dicastic panel comprised 501 men. The large size of these panels, the format of the trial itself and the actual legal space in which the trial took place all dictated the shape of a forensic speech.
In Athens juries were extensions of the community at large, sharing the same social values as the litigants, and it is to these shared values that litigants must direct their emotional appeals and arguments.19 This point is vividly illustrated in Demosthenes 21.2, where Demosthenes reminds the dicasts that some of them were present at the meeting of the Assembly which voted to condemn Meidias for his hybris and how they actually came up to him after that meeting and urged him to proceed with prosecuting Meidias in court. Whether or not any of the dicasts had in fact done this is immaterial; Demosthenes expects them to share his outrage and anger at such an act of public humiliation, as Meidias smacking him across the face in the Theatre of Dionysus. As Carey rightly notes, ‘the jurors are asked to become emotionally involved’,20 and far from being extraneous, such emotional appeals and emotionally charged arguments were not only highly effective in putting the dicasts into a particular frame of mind but also relevant as they helped to define juristically the issue at stake, since the law itself was not always a clear guide.21
So for instance, the law covering the crime of hybris, which Meidias is alleged to have broken, like most Athenian laws, does not define the offence.22 It simply reads:
If any one commits hybris against another, either child, woman, man, whether free or slave, or does anything unlawful to any of these, let any eligible Athenian who wishes bring a public suit (graphe;) to the Thesmothetae.
The law is not written in any kind of technical language but in everyday language of the dicasts who would understand hybris in their own terms.23 I accept Gagarin’s contention that the law was restricted to physical actions against the person, but agree with Fisher that the physical violence needed to involve some form of public humiliation and insult to constitute hybris.24 Either way the offence of hybris was wide open to interpretation and could cover a wide variety of activities. Consequently a charge of hybris overlapped with many other offences, which were covered by other laws and prosecuted by other legal means. Thus, for instance, battery (aikeia), which in extreme instances could be construed as hybris, was often prosecuted by a private suit (dike). The litigant who chose instead to proceed by a public suit for hybris {graphe hybreos) had to prove to the dicasts that the particular violence done to him was in fact hubristic. To do so, he would draw on their collective understanding as to what constituted hybris and suggest reasons why in his particular case the act of striking another was hybris and not simple battery. In the narration, the litigant would obviously describe his version of the incident, emphasizing what in the striker’s behaviour made his action hubristic. As Demosthenes himself notes {21.72-73), to be struck is not so terrible as to be struck with hybris, but the victim finds it difficult to put into words the gesture, the look or the tone of voice which the striker had when he committed hybris. No one, he adds, can describe the hybris to his audience as vividly as it appeared in truth and reality both to the victim and those who witnessed it. Neither the testimony of the witnesses { martyriai) nor the narration of facts { erga) is sufficient to get across the seriousness ofthe offence. And here is where emotionally charged appeals often contained in the proof section of a forensic speech become so important in achieving the vividness needed to recreate the outrage.
Demosthenes begins the account that we have been examining {21.72) by citing an incident apparently familiar to the dicasts, the killing of Boeotus at a public banquet and gathering by Euaeon, who had retaliated in anger for a single blow that had dishonoured him. Then he invites the dicasts to consider and calculate how much more justified he was to be angry at being victimized by Meidias than Euaeon when he killed Boeotus {21.73). His argument is framed in a highly antithetical manner that is intended to arouse the dicasts’ own anger with each contrast {21.73-74): Euaeon was struck by an acquaintance, who was drunk, before six or seven witnesses, who also were acquaintances, in a home where Euaeon need not enter. Demosthenes was ‘hybristhized’ by an enemy who was sober, early in the morning, prompted by hybris not wine, in the presence of many foreigners and citizens, in a temple where he had to enter in his civic duty as choregos. That such arguments were effective is clear from Aeschines’ warning about the beguiling nature of Demosthenes’ antitheses {2.4). With each calculation of the argument {struck/‘hybristhized’, acquaintance/ foe, drunk/sober, few acquaintances/many foreigners, home/temple), the jurors are further drawn in emotionally. The above example packs an emotional appeal in the guise of an argument from probability, of which antithesis is a species: Demosthenes actually invites the jurors to exercise their cognitive powers.
To combat such arguments the opposing litigant could ridicule the whole incident and turn it to laughter. This is precisely what Ariston, who had been viciously assaulted, expects Conon will do when he tries to divert attention from the hybris of his assault by comically reducing the whole incident to a harmless scuffle between young men over call girls, and by contrast represent Ariston and his brothers as violent drunks who are purely vindictive {Dem. 54.13-14). From what Ariston says, we can imagine that Conon framed his argument in an equally antithetical manner to heighten the ridicule and emphasize the absurdity of the charge. It may have run as follows:
There are many men in the city, sons of gentlemen, who play around like young men do, giving themselves obscene nicknames; some fall in love with call girls, like my son, and often get into fights over call girls. That’s the way of boys. But you and your brothers {in contrast to the many sons of gentlemen) are drunk and violent {in contrast to playful), unreasonable and vindictive {in contrast to light hearted ways of boys).
As Aristotle notes (Rhet. 3.18.7), jests have value in judicial contests and Gorgias was correct to advise combating an opponent’s seriousness with jesting and his jesting with seriousness. Certainly Demosthenes has Ariston come across as an earnest young man, who argues the importance of using legal remedies to prevent the escalation of violence (54.18-19). In anticipation of Conon’s strategy Ariston opens his prooimion in dramatic fashion; the very first word he utters, hybris (ubristheis), was intended both to shock the dicasts and set a serious tone for the whole speech (54.1). But such emotional appeals were not restricted to the prooimion, though that was a favourite place for them.25 Aristotle’s comments about jesting are actually made in his discussion of proofs, and as he notes in Book 1 of the Rhetoric (1.2.3-5), pathos, emotion, was a form of proof. That early rhetoricians and speakers in court devoted so much attention to creating pathos both in the prooimion and through their arguments indicates its effectiveness in a judicial context.
The reason why so much energy went into arousing or calming the passions of the dicasts is explained by the format of a trial itself, which consisted of a single set of speeches.26 In some private suits each litigant had an opportunity to deliver a short rebuttal after the main speeches, but by and large the litigant had only one shot at making a favourable impression upon the dicasts. The story is told of how one of Lysias’ clients complained about a speech that he had composed for him. On first reading it appeared marvellously good but on subsequent readings dull and ineffectual. Lysias jokingly replied that he was only going to speak once before the dicasts ([Plut.], Moralia 504c). The point is that dicasts only had one opportunity to hear the case. Once the speeches concluded, they immediately proceeded to vote without any deliberation on the strengths or weaknesses. Further compounding problems was the length of time granted each litigant to speak, where the time was measured by a water clock. In private suits, even those involving a large financial compensation (over 5,000 drachmas), a litigant was given at most 10 choes of water for his first speech (about thirty minutes) and 3 choes (about nine minutes) for his rebuttal speech (AP 67.2).27 For smaller claims the litigants had even less time to speak.28 In public suits, each litigant was assigned a third of a day to speak, perhaps around three and half hours. The longer length for public suits presented the speaker with the problem of sustaining his delivery over an extended period of time, and this problem (running out of rhetorical steam) was alleviated by the assistance of synergoroi, co-pleaders, who would share the speaking time. One co-pleader might be assigned the task of developing a particular argument; another with delivering the epilogue.29 But private suits presented a very different constraint: the litigant had only a limited amount of time to win over the good will of the dicasts, narrate his version of the facts, make two or three convincing arguments and finally sum up.
Moreover, the litigant must sustain the dicasts’ attention throughout in what were not ideal conditions. Juristic silence was not something maintained or even expected in an Athenian court. The courts themselves were semi-open spaces, like stoas, where spectators could stand around and watch the proceedings, prepared at any moment to voice their approval or disapproval.30 The dicasts were also inclined to interject their thoughts and interrupt a speaker, and we can well imagine that the din from such large dicastic panels could be quite unnerving for a speaker. In the extreme it could even prevent a litigant from speaking (Dem. 45.6). But a skilled speaker could respond to, play upon and even manipulate to his own advantage murmuring from the dicasts, elidting expressions of approval for his own arguments or encouraging them to express their disfavour at his opponent.31 Anaximenes (Rhet. Alex. 1432b33-1433a29) suggests ways to confront such interruptions, which shows that they were real enough and the speaker needed to be attuned to them. In short, then, emotional appeals and arguments designed to arouse emotions of the dicasts, far from being extraneous, were highly relevant in forensic oratory as they allowed the speaker not only to grab and sustain the attention of the dicasts but also to define juristically, as we have suggested, the offence for them.
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