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 5: Performance as Evidence
Far from being a small town where everybody kept everybody else under continual surveillance, Attica was a large territory with a large population, and it would be exceptional for a juror to know the people involved in a trial, unless perhaps they lived in the same deme or had served together in the army. Hence the outcome of a trial often depended on what the jurors deduced about the litigants from their performances and those of their synergoi in court.  What the jurors wanted to know, I think, was often less which of the adversaries had the better case than which of them was the “better” Athenian. For men of that culture, better or worse was substantially a matter of behavior in public. What he did within his oikia (house) could in principle have relevance to what we can call the man’s “social or polis personality,”  and private-sphere behavior was sometimes lauded or condemned in court (Roisman 2005:56, 58, 146, 202). Admittedly, the jurors probably supposed that in principle litigants were likely to behave the same way whether in a meeting of the Ecclesia, standing in the hoplite line, drinking with their friends, or dealing with their parents, but that assumption could not often guide the jurors to any particular conclusion. The interested parties – litigants and their co-speakers and witnesses – could hardly be trusted to tell the jury the truth, since they were bound to tell very different stories. Moreover, there could be contradictions between what was most valued in public and private (Dover 1974:301–304). A citizen’s performance in a civic space, before the eyes and ears of those who were to judge him, could, however, serve as a synecdoche for his qualities as a politês. What the jurors saw and heard for themselves, immediately before they cast their ballots, could be construed as the totality of what they needed to know about the litigants to reach a verdict.
I propose that two related aspects of social personality carried great weight in the courts: the litigants’ willingness and ability to acknowledge the occasion as requiring a certain etiquette; and the litigants’ relative mastery of their own emotions under the stress of the trial. Athenian litigiousness is generally treated by our sources as ridiculous or outrageous, but the persistence of the system must attest to its giving the Athenians a great measure of satisfaction (see Christ 1998 passim). One element of its success, obviously enough, was the replacement of disruptive acts of self-help by orderly process. Those litigants who most clearly signaled a respect for the civic order, not only by claiming that they did not habitually get into conflicts that required litigation, and that they were positively good citizens in their execution of military service and liturgies, but also by assimilating their self-presentation to the orderliness of the system and exhibiting an implicit confidence in the system, gained a greater measure of the jurors’ good will than those who spoke with relatively greater show of affect.
It did not have to be this way. In some circumstances, unregulated emotion can be taken as an index of authenticity of feeling, and hence of the truth. Theophrastus reports that “in some places they … put fetters on the defendant [τῷ κρινομένῳ], as they say [is the practice] in Epizephyrian Locri. In situations of this kind, the culprits should generally be put into a state of emotional distress [εἰς ψυχίαν τε καὶ πάθος], as in instances of delay and in those matters which, when protracted, are harmful to the constitution” (De eligendis magistratibus Aly 56–63; trans. Keaney 1974:192). It is far from clear whether Theophrastus is describing a procedure whose general aims much resembled the adversary procedure of the Athenian courts or one that was just a form of extended humiliation and punishment; but it does seem likely that the Locrians regarded the defendants’ distress (physical and psychological) as promoting their candor, perhaps even producing a confession. The rationale would, in that case, resemble the justification for exacting slave testimony under torture. Here, discomfiture applied by the procedure is seen as instrumental, and affect can be diagnostic.
But classical Athens seems in this respect to resemble the traditional culture of the Barotse [Lozi] people of Zambia, a litigious people indeed according to the ethnologist Max Gluckman, who writes that “[e]ven the most equable Lozi seems to be involved constantly in lawsuits” (1973:429). He reports: “The judges may be influenced, both in assessing evidence and in forming a conclusion on the merits of the case, by the manner in which the parties have respectively observed codes of etiquette or conformed to the ritual prescriptions and other customary modes of behavior” (Gluckman 1965:17). “Wrongdoers become angry in court to cover their wrongs… . However righteously indignant a man may be at a trespass on his rights, he should be calm in court, confident that the judges will see that justice is done” (Gluckman 1965:123).  Aside from testimony taken under torture, even if this was a real practice and not just a rhetorical topos (see Gagarin 1996), the Athenian courts were in this respect operating far more like Barotse tribunals two millennia later than contemporary courts in Epizephyrian Locri. It seems very likely that in Athenian courts the relevant codes of etiquette included the etiquette of the court itself. 
The second aspect of social personality emerges from generalizing the favored courtroom deportment, so that it becomes an index of the man’s character. If a man can maintain his composure and dignity in the difficult circumstances of a trial, the jurors would tend to suppose not that this was a posture adopted ad hoc, put on like the three-piece suits adolescent boys on trial in American courts are advised to wear,  but an enduring set of related characteristics that manifest themselves as self-control or self-possession under stress (egkrateia) and orderliness (eukosmia). Several exemplary studies have canvassed aspects of this virtue and concepts closely related to it. I single out Helen North’s Sophrosyne (1966), a classic study of self-control, and Joseph Roisman’s The Rhetoric of Manhood (2005), which centers on the orators. These studies focus on explicit ideology, directly expressed claims and opinions. Roisman writes, “[I]t paid to convey the impression of being in possession of self-control and moderation, especially in the jury courts.”  This observation is followed by examples in which speakers express attitudes and claim to have performed various acts in conformity with these values. In contrast, my principal business here is mainly to identify and analyze devices whereby speakers seek by implication to demonstrate that they are ἐγκρατεῖς and to undermine the appearance or reality of their opponents’ ἐγκράτεια.
To my knowledge, no forensic speech claims in so many words that a man is exactly as he talks, but several other ancient texts come very close indeed. In anticipation, as it were, of Buffon’s “le style, c’est l’homme même,” Plato has Socrates say that the manner of a man’s style and his speech correspond with his character (êthos).  The passages that come closest to identifying a trial as an event serving as a synecdoche appear in Dionysius of Halicarnassus’ essay on Lysias (Lysias 8.8–15). In the first of these, the fundamental word is eikones (images or likenesses): In the second (Lysias 19.14–23), Dionysius is frank in acknowledging that Lysias uses language to compensate for his clients’ shortcomings; moreover, the appearance of emotional control is among Lysias’ strategies:
οὐ γὰρ διανοουμένους μόνον ὑποτίθεται χρηστὰ καὶ ἐπιεικῆ καὶ μέτρια τοὺς λέγοντας, ὥστε εἰκόνας εἶναι δοκεῖν τῶν ἠθῶν τοὺς λόγους, ἀλλὰ καὶ τὴν λέξιν ἀποδίδωσι τοῖς ἤθεσιν οἰκείαν…
Not only does Lysias present the speakers as men whose thoughts are honest, fair-minded, and moderate, with the result that their words seem to be images of their good characters, but he also gives them speech [or “speech style”] appropriate to their [good] characters …
ὅταν δὲ μηδεμίαν ἀφορμὴν τοιαύτην λάβῃ παρὰ τῶν πραγμάτων, αὐτὸς ἠθοποιεῖ καὶ κατασκευάζει τὰ πρόσωπα τῷ λόγῳ πιστὰ καὶ χρηστά, προαιρέσεις τε αὐτοῖς ἀστείας ὑποτιθεὶς καὶ πάθη μέτρια προσάπτων καὶ λόγους ἐπιεικεῖς ἀποδιδοὺς …
And when the facts fail to provide him with such material [i.e. that would indicate the speaker’s worthy background and character], he creates his own moral tone, making his characters seem by their speech to be trustworthy and honest. He credits them with civilized dispositions and attributes controlled feelings to them and reasonable words …
(Translation by Usher, adapted) Dionysius is, I believe, correct in identifying the effect Lysias strives to achieve, a self-presentation “spun” to make the client seem to be the sort of man who deals with his fellow citizens in a calm and fair-minded way. But I think Dionysius failed to understand the range of linguistic means by which the logographos helped his clients project that image.  The first passage continues as follows:
[λέξις] ᾗ πέφυκεν αὐτὰ ἑαυτῶν κράτιστα δηλοῦσθαι, τὴν σαφῆ καὶ κυρίαν καὶ κοινὴν καὶ πᾶσιν ἀνθρώποις συνηθεστάτην· ὁ γὰρ ὄγκος καὶ τὸ ξένον καὶ τὸ ἐξ ἐπιτηδεύσεως ἅπαν ἀνηθοποίητον. καὶ συντίθησί γε αὐτὴν ἀφελῶς πάνυ καὶ ἁπλῶς, ὁρῶν ὅτι οὐκ ἐν τῇ περιόδῳ καὶ τοῖς ῥυθμοῖς, ἀλλ᾽ ἐν τῇ διαλελυμένῃ λέξει γίνεται τὸ ἦθος.
… by its nature [style] displays them in their best light – clear, standard, ordinary speech which is thoroughly familiar to everyone. All forms of pompous, outlandish, and contrived language are foreign to characterization. As to his composition, it is absolutely simple and straightforward. He sees that characterization is achieved not by periodic structure and the use of rhythms, but by loosely connected sentences.
(Lysias 8.11–21; translation by Usher)In speaking only of the advantages of adhering to familiar language, Dionysius (Lysias 8.21–34) elides the differences between even the simplest forms of literary prose and colloquial speech; or rather, he claims that the simplicity of Lysianic prose is in fact a deception of extraordinary skill:
δοκεῖ μὲν γὰρ ἀποίητός τις εἶναι καὶ ἀτεχνίτευτος ὁ τῆς ἁρμονίας αὐτοῦ χαρακτὴρ καὶ οὐ θαυμάσαιμ᾽ ἄν, εἰ πᾶσι μὲν τοῖς ἰδιώταις, οὐκ ὀλίγοις δὲ καὶ τῶν φιλολόγων, ὅσοι μὴ μεγάλας ἔχουσι τριβὰς περὶ λόγους, τοιαύτην τινὰ παράσχοι δόξαν, ὅτι ἀνεπιτηδεύτως καὶ οὐ κατὰ τέχνην, αὐτομάτως δέ πως καὶ ὡς ἔτυχε σύγκειται. ἔστι δὲ παντὸς μᾶλλον ἔργου τεχνικοῦ κατεσκευασμένος. πεποίηται γὰρ αὐτῷ τοῦτο τὸ ἀποίητον καὶ δέδεται τὸ λελυμένον καὶ ἐν αὐτῷ τῷ μὴ δοκεῖν δεινῶς κατεσκευάσθαι τὸ δεινὸν ἔχει. τὴν ἀλήθειαν οὖν τις ἐπιτηδεύων καὶ φύσεως μιμητὴς γίνεσθαι βουλόμενος οὐκ ἂν ἁμαρτάνοι τῇ Λυσίου συνθέσει χρώμενος· ἑτέραν γὰρ οὐκ ἂν εὕροι ταύτης ἀληθεστέραν.
As a further general comment on this quality, I may say that I do not know of any other orator – at least any who employs a similar sentence-structure – with greater charm or persuasiveness. The distinctive nature of its melodious composition seems, as it were, not to be contrived or formed by any conscious art, and it would not surprise me if every layman, and even many of those scholars who have not specialized in oratory, should receive the impression that this arrangement has not been deliberately and artistically devised, but is somehow spontaneous and fortuitous. Yet it is more carefully composed than any work of art. For this artlessness is itself the product of art: the relaxed structure is really under control, and it is in the very illusion of not having been composed with masterly skill that the mastery lies. Therefore the student of realism and naturalism would not go wrong if he were to follow Lysias in his composition, for he will find no model who is more true to life.
(Translation by Usher)And yet Dionysius does not often show just how Lysias executed his masterpieces of covert artfulness. Modern scholars, perhaps because they learned classical Greek as a dead language, solely by the artificial means available to anyone born long after the death of its last native speakers, have managed to discover at least a few of the tricks Dionysius could only intuit in what was for him already a classical text. 
Like “manhood,” ἐγκράτεια is not a precisely demarcated set of qualities or actions.  Differences in occasion and degree can easily throw any simplification off the tracks, and paradoxes abound. In a passage of Demosthenes 53 discussed by Roisman (2005:54), Apollodorus, who delivered and most probably wrote the speech, feels no risk in reporting his own distress at the plight of a friend who has been kidnapped; the primary sufferer was not himself but his friend, and Apollodorus himself certainly does not interrupt his speech to fetch a sigh in recollection of his own emotion.  As Roisman argues in his discussion of Demosthenes’ prosecution of Meidias (2005:76–77), a man’s decision to litigate rather than settle the issue by physical violence could make the virtue I am calling ἐγκράτεια an effective excuse for failing to do what would ordinarily be regarded as the “manly thing.” Expectations based on stereotypes were in play, particularly in the matter of the litigants’ ages, a topic often addressed in surviving speeches and contemporary discursive texts. Most often cited is Lysias 16, a speech delivered by a young man in a very tight spot indeed.  The speaker opens with an arrogant boast (16.2):He soon plays on the very prejudice exemplified by that claim to his own advantage (16.11):This view of young men is adduced as early as Antiphon Tetralogy 3.3.2  and continues to be expressed, sometimes quite luridly, through the fourth century.
ἐγὼ γὰρ οὕτω σφόδρα ἐμαυτῷ πιστεύω, ὥστ᾽ ἐλπίζω καὶ εἴ τις πρός με τυγχάνει ἀηδῶς [ἢ κακῶς] διακείμενος.
I am so utterly confident in myself that I expect even someone badly disposed towards me to change his mind when he hears me speak about what happened and to think much better of me in the future.
περὶ δὲ τῶν κοινῶν μοι μέγιστον ἡγοῦμαι τεκμήριον εἶναι τῆς ἐμῆς ἐπιεικείας, ὅτι τῶν νεωτέρων ὅσοι περὶ κύβους ἢ πότους ἢ τὰς τοιαύτας ἀκολασίας τυγχάνουσι τὰς διατριβὰς ποιούμενοι, πάντας αὐτοὺς ὄψεσθέ μοι διαφόρους ὄντας καίτοι δῆλον ὅτι, εἰ τῶν αὐτῶν ἐπεθυμοῦμεν, οὐκ ἂν τοιαύτην γνώμην εἶχον περὶ ἐμοῦ.
As far as public life is concerned, I believe the strongest proof of my good conduct is this: you will see that those of the young men who spend their time playing dice, drinking, and participating in that sort of unruliness are all hostile to me… . It is clear that they would not take that attitude towards me if we had the same interests. 
[ back ] 1. It seems self-evident that jurors would not very often separate their judgment of the litigants and their associates. “Guilt [or more rarely, innocence] by association” is the principle announced by a character at Euripides fragment 812.7–9: ὅστις δ᾽ ὁμιλῶν ἥδεται κακοῖς ἀνήρ, /οὐ πώποτ᾽ ἠρώτησα, γιγνώσκων ὅτι / τοιοῦτός ἐστιν οἷσπερ ἥδεται ξυνών(“I have never asked what sort of man takes pleasure in the company of evil men, since I know that a man shares the character of those whose company he enjoys”). Time limits are probably the main reason why fewer synêgoroi, most of whom would be men whose company a litigant enjoyed, are attested in private than in public suits: see Rubinstein 2000:65–70.
[ back ] 2. I am deliberately avoiding the Greek term ἦθος, since it is sometimes understood (wrongly, in my opinion) as referring to an individual’s personality: see Dover 1968b:76–77.
[ back ] 3. One might suppose that this preference for a calm presentation is not exclusively indigenous, but reflects also the influence of the colonial administration – that it is more British than Barotse. Gluckman, however, emphatically asserts that what he observed was deeply rooted in the native culture (1965:33) and the proceedings of British courts are “alien and often incomprehensible” to the Barotse. See also Gluckman 1973:246–252.
[ back ] 4. Not that Athens was in this respect different from all other Greek states. POxy 410, a rhetorical treatise written in Doric, and therefore surely not meant in the first instance for the Athenian market, advises the reader to “take no pleasure in making indecorous or insolent statements, for that is mean and a sign of intemperate disposition, while the avoidance of abuse is a mark of high-mindedness and an ornament of speech” (col. 2.71–79, trans. Grenfell and Hunt). There are holes in the papyrus, but the earlier part (col. 1.11–12) specifies an audience of jurors.
[ back ] 5. A New Haven, Connecticut, attorney, very experienced in the defense of such clients, has confirmed my layman’s observation of this practice.
[ back ] 6. Roisman 2005, especially 178; cf. 198 for examples of the imputing of disorderly acts to one’s opponents.
[ back ] 7. Republic 400d: τί δ᾽ ὁ πρόπος τῆς λέξεως, ἦν δ᾽ ἐγώ, καὶ ὁ λόγος; οὐ τῷ τῆς ψυχῆς ἤθειἕπεται; πῶς γὰρ οὔ; (“What about the manner of speech, I said, and discourse? Does it not conform to the character of the soul? [Socrates’ interlocutor answers] Certainly!”). Cf. Menander fragment 407: τί οὖν ἑτέρους λαλοῦντας εὖ βδελύττομαι; |τρόπος ἔσθ᾽ ὁ πείθων τοῦ λέγοντος, οὐ λόγος.̣ (“Why do I detest other men, the ones skilled at jabbering? Because it’s the style that persuades, not the argument.”) On Buffon’s aphorism elegantly applied to historiography, see Gay 1974. For a perceptive survey of style in literary representation from epic to the fourth century, see Worman 2002.
[ back ] 8. The passage is adduced by Dover (1968b:76–77).
[ back ] 9. A short lyric poem, PMG 889, expresses the wish that one could split open a man’s chest and look inside. Cf. Euripides Medea 516–519 and Hippolytus 925–927. One might say that performance in court was a pis aller for that sort of exploratory surgery.
[ back ] 10. It may seem impertinent for a modern to criticize the linguistic discernment of a native speaker of Greek who lived only a few centuries after the authors he discusses, but I am hardly the first to do so; see, for instance, Macleod’s criticism of Dionysius’ analysis of Thucydidean style (1979).
[ back ] 11. Immediately pertinent to this discussion is what Dover 1968b:83–86 analyzes soon after discussing Dionysius’ remarks on Lysias’ style: the means by which speakers in Lysias signal the progression of events in their narratives. To my knowledge, the phenomenon was not noticed until Fraenkel 1962.
[ back ] 12. “[M]anhood … was an all-encompassing perception that the Athenians were happy to leave ill defined… . The concept is too complex and full of contradictions, most likely because the ‘practitioners of masculinity’ – the investigator’s human subjects – often fail to agree about what it entails, or what makes a manly man” (Roisman 2005:2). The description of a man as ἀπράγμων (not officious or meddlesome) was particularly susceptible to being “spun” as either a compliment or an insult: Roisman 2005:182.
[ back ] 13. See also Roisman 2005:97 for a discussion of the celebrated “open texture” passage at Demosthenes 22.25–27. Hyperides might be said to minimize the paradox by drawing a distinction between, on the one hand, manliness combined with rational reflection and, on the other, thoughtless and emotional audacity: see Roisman 2005:111.
[ back ] 14. The speech was for delivery by one Mantitheus, who had served the Thirty Tyrants, at a dokimasia conducted by the restored democracy.
[ back ] 15. Similarly, §19 runs against the grain in a plea not to rely on surface manifestations of character, including “reticence and a decorous style of [kosmiôs – the adverb related to kosmos] dress”: ὥστε οὐκ ἄξιον ἀπ᾽ ὄψεως, ὦ βουλή, οὔτε φιλεῖν οὔτε μισεῖν οὐδένα, ἀλλ᾽ ἐκ τῶν ἔργων σκοπεῖν· πολλοὶ μὲν γὰρ μικρὸν διαλεγόμενοι καὶ κοσμίως ἀμπεχόμενοι μεγάλων κακῶν αἴτιοι γεγόνασιν, ἕτεροι δὲ τῶν τοιούτων ἀμελοῦντες πολλὰ κἀγαθὰ ὑμᾶς εἰσιν εἰργασμένοι.
[ back ] 16. μάθετε δὴ πρῶτον μὲν ὅτι ἄρξαι καὶ παροινεῖν τοὺς νεωτέρους τῶν πρεσβυτέρων εἰκότερόν ἐστι· τοὺς μὲν γὰρ ἥ τε μεγαλοφροσύνη τοῦ γένους ἥ τε ἀκμὴ τῆς ῥώμης ἥ τε ἀπειρία τῆς μέθης ἐπαίρει τῷ θυμῷ χαρίζεσθαι, τοὺς δὲ ἥ τε ἐμπειρία τῶν παροινουμένων ἥ τε ἀσθένεια τοῦ γήρως ἥ τε δύναμις τῶν νέων φοβοῦσα σωφρονίζει. (“… you know that young men are more likely [eikos] to get drunk and start a fight than old men; for they are proud of their age [others understand “social rank of the family into which they were born”] at their peak physically, and not used to drinking, all of which arouse their anger. Old men, however, tend to control themselves, since they are used to drinking, are weak in old age, and fear the strength of the young.”) [ back ] Those who speak for the defendant, who has evidently availed himself of his right to withdraw from Attica before the jury votes, try to disarm the age stereotype at Tetralogy 3.4.2 by observing that “many young men act with restraint, and many of the elderly become violent when drunk, so this argument does not support the prosecutor any more than the defendant.” For discussion of age stereotypes see, inter alia, Dover 1974:102–106 and Roisman 2005:11–25.