Victor Bers, Genos Dikanikon: Amateur and Professional Speech in the Courtrooms of Classical Athens
Chapter 1: The Challenge of Court Speech
Chapter 2: Amateur Litigants, Amateur Speakers
Chapter 3: Natural and Artificial Speech from Homer to Hyperides; A Brief Sketch
Chapter 4: Terrors of the Courtroom
Chapter 5: Performance as Evidence
Chapter 6: Appeals to Pity and Displays of Anger
Chapter 7: Tactics, Amateur and Professional
Chapter 1: The Challenge of Court Speech
Few aspects of classical Greek literature are as well preserved as the oratory of the lawcourts of classical Athens. Of the approximately 150 speeches composed by or attributed to the Attic orators who constitute the Canon, about two-thirds were written for real or imaginary forensic occasions. For some purposes we can also consult partly or entirely imaginary court speeches by Gorgias, Antisthenes, Alcidamas, Plato, and Xenophon. Attic oratory may be regarded as democracy’s indispensable tool, but this tool was not thrown away once Athenian deliberative and judicial bodies lost their powers. If Quintilian is right, the introduction of imaginary forensic and deliberative rhetoric exercises, undoubtedly imitative of orators already recognized as good models, occurred almost immediately after the accession of Demetrius of Phaleron, who served the Macedonian kingdom as the plenipotentiary governor of Athens beginning in 317.  In any case, the study of Attic oratory was soon established as indispensable for all who aspired to a full share of Greek culture, whether they were members of the Greek-speaking upper classes or ambitious barbaroi. 
We find remarks on the quality of public speech as early as the Iliad, and by not later than the middle of the fifth century men were paid to teach other men to speak. It is impossible to say when judicial procedures were first thought to require a rhetoric different from those appropriate to political or ceremonial occasions, but by the fourth century the differentiation of rhetorical genres (genê) was well established (though there are some discrepancies in the number of genres and their names). The most authoritative statement, unsurprisingly, is Aristotle’s in the Rhetoric. Working from a threefold distinction among speech occasions and their audiences, he concludes:
ἔστιν δ᾽ ὁ μὲν περὶ τῶν μελλόντων κρίνων ὁ ἐκκλησιαστής, ὁ δὲ περὶ τῶν γεγενημένων ὁ δικαστής, ὁ δὲ περὶ τῆς δυνάμεως ὁ θεωρός, ὥστ᾽ ἐξ ἀνάγκης ἂν εἴη τρία γένη τῶν λόγων τῶν ῥητορικῶν, συμβουλευτικόν, δικανικόν, ἐπιδεικτικόν.
A member of a democratic assembly is an example of one judging about future happenings, a juryman an example of one judging the past. A spectator is concerned with the ability [of the speaker].  Thus, there would necessarily be three genera [genê] of rhetorics; symbouleutikon [“deliberative”], dikanikon [“judicial”],  epideiktikon [“demonstrative”].
Rhetoric 1358b4–8 (translation by Kennedy 1991)The variations are not significant; e.g. Anaximenes in the Rhetorica ad Alexandrum  uses the words dêmêgorikon, epideiktikon, and dikanikon. At Phaedrus 261a–b Plato speaks of rhetoric meant for law cases and “addresses to the people,” using for the latter the term dêmêgoria, a word that suggests deliberative speech. But having quoted, or more likely written, a work supposedly in Lysias’ epideictic style in the form of the Erotikos earlier in the dialogue (230e6–234c5), Plato cannot be said to be ignoring that branch of oratory. 
To Aristotle’s disgust (Rhetoric 1354b19–27), writers on oratory were far more interested in the forensic than in the deliberative branch.  The large number of preserved forensic speeches is obviously advantageous to this study, but in one respect I must join Aristotle in deploring the relative paucity of preserved political speeches. In the Canon there are at most nineteen speeches written for the Athenian Assembly,  and with a few exceptions they are lamentably late. Compare speeches of Antiphon and Isaeus and you can see that forensic rhetoric was developing very rapidly indeed, but a direct comparison of roughly contemporary dicanic and symbouleutic speech is not possible until the middle of the fourth century.  Furthermore, a clean distinction between forensic and symbouleutic speech is often an illusion, particularly in dealing with court speeches written and delivered by leading politicians. The institutional status of a case might justify assignment of a speech to the genos dikanikon, though the significant issue is contemporary or retrospective political struggle: Aeschines 1 Against Timarchus and Demosthenes 18 On the Crown are notorious examples. The unavoidable consequence is that some of our evidence for stylistic features of the genos dikanikon is not as clear as we would like. 
Despite the good fortune that has preserved Attic court speeches in great profusion, along with a considerable body of relevant commentary and polemic,  the concrete reality and drama of the Attic courts was largely ignored by scholars until the mid-1980s.  Moreover, the overshadowing bulk of the preserved speeches – professional oratory composed by politicians for their own use, sometimes in court, and by logographoi (speechwriters) for other men to deliver – has created a sort of blind spot in the scholarship. With the exception of Isaeus, all the canonical orators took the podium in at least one forensic case,  but few litigants or their synêgoroi (co-speakers) were themselves logographoi. And in my view it is very likely that many litigants spoke in court with little or no professional help.  In this monograph I attempt to show that many features of Athenian court speech in the deluxe form we know from the preserved speeches were fashioned to avoid the failings of amateur speech. Coining a Latin word, I call those defects evitanda, things to avoid.
If all we knew of the language of the Athenian lawcourts was what Aristotle says in the third book of the Rhetoric, we might suppose that the stylistic requirements in composition were minimal:Still, an idiôtês needing to speak in court might not see his task as one for which he commanded the necessary skills, even if Isocrates thought it required nothing but a “plain” style.
δεῖ δὲ μὴ λεληθέναι ὅτι ἄλλη ἑκάστῳ γένει ἁρμόττει λέξις. οὐ γὰρ ἡ αὐτὴ γραφικὴ καὶ ἀγωνιστική, οὐδὲ δημηγορικὴ καὶ δικανική. ἄμφω δὲ ἀνάγκη εἰδέναι· τὸ μὲν γάρ ἐστιν ἑλληνίζειν ἐπίστασθαι . . .
One should not forget that a different lexis is appropriate for each genus [of rhetoric]. For the written and agonistic [style] are not the same; nor are the demegoric [deliberative] and the dicanic [judicial]; and it is necessary to know both. [Debate] consists of knowing how to speak good Greek.
Rhetoric 1413b6 (translation by Kennedy 1991) Similarly, Isocrates makes dicanic speech a sort of ostensible “non-style.” He says that among the sorts of discourses that he did not write as a young man were “those that when spoken seem simple and unadorned, such as people skillful in courts teach the young to practice if they want to have the advantage in litigation” (Panathenaicus 1).  Isocrates does at least allow the possibility that the simplicity of the spoken form conceals some artifice, but some ten years earlier in the Panegyricus (4.11) he enunciated a more trenchant opinion:
[S]ome criticize speeches that are beyond ordinary citizens [idiôtai] and are too carefully composed. They have so misjudged things that they analyze elaborate speeches by comparing them to those written for trials about private contracts, as if the two types must be similar, when in fact one is plain [aphelôs],  and the other is demonstrative [epideiktikôs], or as if they themselves observe the middle course while those who know how to speak precisely cannot speak simply. 
Nowhere does Aristotle suggest that the language of the Athenian courts deviated in lexicon or phraseology from the Attic speech that could be heard just outside the courtrooms when logographoi were chatting informally, say in the perfume, shoemaker, and barber shops nearest the Agora mentioned by the speaker at Lysias 24.20. Our knowledge of that everyday or “routine” Attic is imperfectly cobbled together, mostly from Old Comedy, by stripping away as best we can the paratragedy and other manifestly comic uses of language and the effects of versification. Assuming we have some confidence in our ability to determine certain features of routine Attic, we can compare that sort of language to dicanic speech. What we find is that there are deviations between routine and dicanic speech in lexicon, phraseology, and, to a much lesser extent, syntax; some of these deviations are blatant, others remarkably subtle. A number are examined in the chapters that follow, but I suspect that others are waiting to be discovered. One of my goals is to offer an economical explanation for these discrepancies in linguistic usage.
I argue in this monograph (1) that the professional component of the genos dikanikon represents only a portion of the speechmaking that went on in the Athenian courts; (2) that many men constrained to rely entirely or mainly on their own resources also spoke in court; (3) that their speech in court resembled routine speech in a number of ways, and that in these they differ from professional speech; (4) that professional speech was crafted to avoid certain features of amateur speech that seemed to cause a speaker’s failure, features I call evitanda, in particular those that manifested excessive emotion when it was in his interest to appear unafraid and unperturbed. In a short appendix I discuss the shortcomings, as I see it, of the currently prevailing explanation of professional dicanic speech as formal (rather than colloquial), a continuation of a preference for restraint in public speech at Athens or, more broadly, earlier written prose.
[ back ] 1. Institutio Oratoria 2.4.41: . . . fictas ad imitationem fori consiliorumque materias apud Graecos dicere circa Demetrium Phalerea institutum fere constat. One might describe this as a revival of the practice embodied in Antiphon’s Tetralogies.
[ back ] 2. See Cribiore 2001, chapter 8, for specific examples of how rhetoric suffused not only elementary and higher education, but the lives of the elite once they left school. For the sinister historical consequences of a “rhetoricized mentality,” see Rudich 1997.
[ back ] 3. This sentence has come under suspicion: see Kennedy 1991 ad loc.
[ back ] 4. Kennedy’s word, but I use ‘forensic’ throughout this monograph.
[ back ] 5. The author is sometimes given as Pseudo-Aristotle.
[ back ] 6. Cf. Plato Sophist 222c, where a “conversational” art forms a triad with forensic and political rhetoric.
[ back ] 7. He was also disgusted by the audiences. Delivery is important “owing to the mokhthêria [incapacity, or even depravity] of the hearer” (Rhetoric 1404a8).
[ back ] 8. Andocides 3 is probably a legitimate early example, but not the other candidates: see Hansen 1984:60 (= Hansen 1989:286), but cf. E. Harris 2000, who is certain the De Pace is a forgery.
[ back ] 9. Comparisons within a single author’s work are (or would be) of particular interest. For one example, see the discussion of Antiphon in chapter 3.
[ back ] 10. On the other hand, epideictic oratory is so patently different that it is virtually invisible in this monograph.
[ back ] 11. A few examples: Gorgias’ Helen, Plato’s Phaedrus, Aristotle’s Rhetoric, and Dionysius of Halicarnassus in his essays on individual orators.
[ back ] 12. Not, of course, entirely. Legal issues, largely treated from the perspective of the dominant European legal traditions, are prominent in the anthropologically informed work of Glotz and Gernet; Bonner, Gertrude Smith, and Dorjahn did important work on the analysis of procedure and some aspects of the “lower” speechmaking. As the title shows, Lavency 1964, an excellent piece of work, is explicitly about the professionals.
[ back ] 13. I am assuming that Isocrates spoke for himself at the actual diadikasia whose outcome provides the pretext for his imaginary speech, the Antidosis. Apollodorus, sometimes called the Eleventh Attic Orator, also spoke in court.
[ back ] 14. Although skeptics (e.g. Usher 1976) seem to be in the majority, I believe that Dover (1968b) has demonstrated the great probability that even in the preserved speeches there may be a mixture of amateur “client” and professional “consultant.” If Dover (1968b:150f.) had no other evidence to adduce than Aristophanes Knights 347–350, his argument would be hard to dismiss. For the incidence of amateur speech in the courts, see my discussion in chapter 2.
[ back ] 15. One point may require clarification: the component of rhetoric Kennedy identifies as “debate” takes in both symbouleutic (political) and dicanic (forensic) oratory. Cf. Rhetoric 1407a19–b25, where Aristotle includes among the constituents of “speaking good Greek” the correct use of connective particles, the use of specific words rather than circumlocutions, and the avoidance of unintentional ambiguity in various forms, e.g. phraseology difficult for the hearer to properly segment.
[ back ] 16. τοὺς ἁπλῶς δοκοῦντας εἰρῆσθαι καὶ μηδεμιᾶς κομψότητος μετέχοντας, οὓς οἱ δεινοὶ περὶ τοὺς ἀγῶνας παραινοῦσι τοῖς νεωτέροις μελετᾶν, εἴπερ βούλονται πλέον ἔχειν τῶν ἀντιδίκων.
[ back ] 17. See Papillon’s note for a defense of the emendation he translates in preference to the transmitted reading.
[ back ] 18. καίτοι τινὲς ἐπιτιμῶσι τῶν λόγων τοῖς ὑπὲρ τοὺς ἰδιώτας ἔχουσι καὶ λίαν ἀπηκριβωμένοις, καὶ τοσοῦτον διημαρτήκασιν ὥστε τοὺς πρὸς ὑπερβολὴν πεποιημένους πρὸς τοὺς ἀγῶνας τοὺς περὶ τῶν ἰδίων συμβολαίων σκοποῦσιν, ὥσπερ ὁμοίως δέον ἀμφοτέρους ἔχειν, ἀλλ᾽ οὐ τοὺς μὲν ἀφελῶς, τοὺς δ᾽ ἐπιδεικτικῶς, ἢ σφᾶς μὲν διορῶντας τὰς μετριότητας, τὸν δ᾽ ἀκριβῶς ἐπιστάμενον λέγειν ἁπλῶς οὐκ ἂν δυνάμενον εἰπεῖν.