Another kind of participant whom litigating parties brought into their case was the advocate (see also Chapters 19, 20, and 25). Unlike in Athenian legal proceedings, where the parties would generally read speeches written for them by others, in the
Roman courts each side was represented by an orator. While the presence of this professional speaker did not preclude the possibility that a prosecutor or defendant might also speak on his, or possibly her (Val. Max. 8.3.1-3), own behalf, an orator was expected to take the lead. But however great his rhetorical powers, he was not necessarily an expert in the law. Therefore, the two groups, orators and jurisconsults, were viewed as distinct,46 although some orators did possess extensive legal experience, and some jurisconsults were passably good orators: Cicero describes Scaevola as ‘‘the most eloquent among those learned in the law, the most learned in the law among the eloquent’’ (Cic. De or. 1.180), and his speeches were actually published (Cic. Brut. 163). Cicero states that Servius Sulpicius had started out in rhetoric (Brut. 151), as Pomponius says about Aelius Tubero (Dig. 1.2.2.46). A few orators had jurisprudential expertise, notably Crassus (Cic. De or. 1.40, 216, Brut. 145), not to mention Cicero himself, who had studied law under Mucius the augur (Brut. 306), and wrote a work (no longer extant) On Reducing the Civil Law to a Science (Gell. NA 1.22.7; cf. Cic. De or. 2.142, where Cicero has Crassus promise to write such a work).47
This role of the orator in Roman litigation introduced an element into Roman forensic oratory not present in the Athenian courts, one that Roman rhetorical manuals had to interject as they translated and adapted their Greek predecessors. Most importantly, the Roman advocates brought their own character ( ethos) into play in order to strengthen the case that they were representing (De or. 2.182-4; see also Chapters 20 and 25).48 These advocates were technically not allowed to accept fees from their clients (clientes), and were supposed to act out of a spirit of noblesse oblige (see also Chapter 19). Even Kelly, who is inclined to emphasize the practical obstacles to real legal equity, accepts the idea that the institution of forensic clientela helps explain why even a poor man could probably find an advocate if he needed one.49 It was particularly praiseworthy to speak on behalf of a defendant (Cic. Off. 2.51), and prosecution was undertaken generally only by younger aristocrats attempting to launch their political careers.
World History
