Quintilian's Institutes of Oratory
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Book 12 - Chapter 8

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The orator must study a cause well before he ventures to plead it; he must examine all documents connected with it, and thoroughly weigh the statements of his client.

1. THE next thing to be considered is the mode of studying a cause, which constitutes the foundation of pleading, for no speaker can be imagined of such extremely slender powers as, when he has carefully ascertained every particular in a cause, he is unable to state it at least to the judge. 2. But very few orators take sufficient trouble in this respect. I say nothing of those who are utterly careless and give themselves no concern on what the success of a cause depends, as long as there are points, though wholly unconnected with the case, that relate to characters involved in it and lead to the usual flourishes on commonplace topics, which may afford them an opportunity for noisy declamation. There are some also whom vanity perverts. Some of these, who partly pretend that they are constantly occupied and have always something which they must first dispatch, tell their client to come to them the day or the very morning before the trial and sometimes even boast that they received their instructions while the court was sitting. 3. Others, partly assuming a show of extraordinary ability that they may be thought to understand things in moment, pretend that they conceive and comprehend almost before they hear. After they have chanted forth, with wonderful eloquence and the loudest clamors of applause from their partisans (much that has no reference either to the judge or to their client), they are conducted back through the forum, drenched in perspiration and with a long train of attendants.

4. Nor can I tolerate the foppishness of those who desire that their friends should be instructed in the causes which they have to plead, though, indeed, there may be less harm done in this case if the friends learn accurately and repeat accurately. But who will learn a cause with the same care as the pleader himself? How can the depositary, the mere instrument of communication in cases, bestow his attention contentedly on other men's causes when, even to those who are going to plead, their own causes are of so little moment?

5. But the most pernicious practice of all is for an orator to be content with written memorials, which was drawn up either by the party who has recourse to an advocate, because he is unable to conduct his own cause, or was composed by someone of that class of advocates who confess they are incapable of pleading, yet undertake the most difficult part of a pleader's business. For why should not he, who can judge what ought to be said, what ought to be suppressed, altered, or imagined, stand forth as an orator himself, when, what is far more difficult, he is making another person an orator? 6. Such composers of memorials, however, would be less mischievous if they wrote down everything merely as it occurred. Instead, they add motives, coloring, and inventions that do more harm than the plain truth, and most of our orators, when they receive these farragos, think it wrong to make any change in them and adhere to them as strictly as to cases proposed in the schools. The consequence is that they find themselves deceived and learn the cause, which they would not learn from their own client, from the advocates of the opposite party. 7. Let us allow plenty of time, then, and a place of interview free from interruption to those who shall have occasion to consult us, and let us earnestly exhort them to state every particular off hand, however verbosely, or however far they may wish to go back, for it is a less inconvenience to listen to what is superfluous than to be left ignorant of what is essential. 8. Frequently, too, the orator will find both the evil and the remedy in particulars which to the client appeared to have no weight on either side of the question. Nor should a pleader have so much confidence in his memory as to think it too great a trouble to write down what he hears.

Nor should he be content with hearing only once. The client should be required to repeat the same things again and again, not only because some things might have escaped his memory at the first recital, especially if he is, as is often the case, an illiterate person, but also that we may see whether he tells exactly the same story, for many state what is false and, as if they were not stating their case but pleading it, address themselves, not as to an advocate, but as to a judge. 9. Therefore, we must never place too much reliance on a client. Instead, he must be sifted, cross-examined, and obliged to tell the truth, for as physicians must cure not only apparent ailments, but even latent ones to be discovered, though patients may conceal them, so an advocate must look for more than is laid before him. 10. When he has exercised sufficient patience in listening, he must assume another character and act the part of the adversary. He must state whatever can possibly be imagined on the other side and whatever the nature of the case will allow in such a discussion of it. The client must be questioned sharply and pressed hard, for, by searching into every particular, we sometimes discover truth where we least expected to find it.

11. In a word, the best advocate for learning the merits of a cause is he that is least credulous, for a client is often ready to promise everything, offering a cloud of witnesses and sealed documents quite ready, and averring that the adversary himself will not even offer opposition on certain points. 12. It is therefore necessary to examine all the writings relating to a case. It is not sufficient to inspect them; they must be read through, for very frequently they are either not at all what they were asserted to be, or they contain less than was stated, or they are mixed with matters that may injure the client's cause, or they say too much and lose all credit from appearing to be exaggerated. 13. We may often, too, find a thread broken, or wax disturbed, or signatures without attestation, all of which, unless we settle them at home, will embarrass us unexpectedly in the forum. Evidence which we are obliged to forfeit will damage a cause more than it would have suffered from none having been offered.

14. An advocate will also bring out many points which his client regarded as having no bearing on the case, if he will go over all the grounds which I have previously specified for arguments. For the reasons I have given, it will be by no means convenient to review all these and try them one by one while we are pleading. But in studying the case, it will be necessary to examine minutely what sort of characters are concerned in it, what times, or places, or practices, or documents have any reference to it, and all other particulars from which not only artificial proof may be drawn, but also to ascertain what witnesses are to be feared and how they are to be refuted. It makes a great difference whether an accused person suffers under envy, or dislike, or contempt, of which the first is generally directed against superiors, the second against equals, and the third upon inferiors. 15. After having thus thoroughly examined a cause and brought before his eyes everything that may promote or hinder its success, let him, in the third place, put himself in the place of the judge and imagine the cause to be pleaded before him. Whatever arguments would move him most if he had really to pass sentence on the matter, let him suppose that those arguments will have most effect upon any judge before whom it may be brought. Thus, the result will seldom deceive him, or if it does, it will be the fault of the judge.

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Lee Honeycutt (honeycuttlee@gmail.com) Last modified:1/15/07
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