Bers, Victor. 2009. Genos Dikanikon: Amateur and Professional Speech in the Courtrooms of Classical Athens. Hellenic Studies Series 33. Washington, DC: Center for Hellenic Studies. http://nrs.harvard.edu/urn-3:hul.ebook:CHS_Bers.Genos_Dikanikon.2009.
Chapter 6: Appeals to Pity and Displays of Anger
Appealing to Pity
The sarcastic phrases θαυμάσια δὲ ἐργαζομένους (“behaving in an amazing fashion”), οὗτοι γυναικῶν οὐδὲν διαφέρουσιν (“these men are no better than women”), and τὰ ἐλεινὰ ταῦτα δράματα (“these piteous dramas”) are remarkable for the utter lack of compassion and forbearance they manifest. But as reportage, Plato might provide an accurate description of the appeal to pity as it was performed by a speaker facing the possibility of execution, or even lesser punishments, if he failed to win his case. 
τῆς ἡμετέρας ὡς οὐδεμιᾶς ἥττων ἐστὶν βασιλείας.
τί γὰρ εὔδαιμον καὶ μακαριστὸν μᾶλλον νῦν ἐστι δικαστοῦ,
ἢ τρυφερώτερον ἢ δεινότερον ζῷον, καὶ ταῦτα γέροντος;
ὃν πρῶτα μὲν ἕρποντ᾽ ἐξ εὐνῆς τηροῦσ᾽ ἐπὶ τοῖσι δρυφάκτοις
ἄνδρες μεγάλοι καὶ τετραπήχεις· κἄπειτ᾽ εὐθὺς προσιόντι
ἐμβάλλει μοι τὴν χεῖρ᾽ ἁπαλὴν τῶν δημοσίων κεκλοφυῖαν.
ἱκετεύουσίν θ᾽ ὑποκύπτοντες τὴν φωνὴν οἰκτροχοοῦντες·
“οἴκτιρόν μ᾽, ὦ πάτερ, αἰτοῦμαί σ᾽, εἰ καὐτὸς πώποθ᾽ ὑφείλου
ἀρχὴν ἄρξας ἢ ᾽πὶ στρατιᾶς τοῖς ξυσσίτοις ἀγοράζων.”
ὃς ἔμ᾽ οὐδ᾽ ἂν ζῶντ᾽ ᾔδειν, εἰ μὴ διὰ τὴν προτέραν ἀπόφυξιν.
And piteous entreaties, says Philocleon, continue within the trial itself as litigants bemoan their poverty and, should stories and jokes fail to please, culminate in the parading of children before the jury:
τὰς θηλείας καὶ τοὺς υἱεῖς τῆς χειρός, ἐγὼ δ᾽ ἀκροῶμαι,
τὰ δὲ συγκύψανθ᾽ ἅμα βληχᾶται, κἄπειθ᾽ ὁ πατὴρ ὑπὲρ αὐτῶν
ὥσπερ θεὸν ἀντιβολεῖ με τρέμων τῆς εὐθύνης ἀπολῦσαι·
“εἰ μὲν χαίρεις ἀρνὸς φωνῇ, παιδὸς φωνὴν ἐλεήσαις·”
εἰ δ᾽ αὖ τοῖς χοιριδίοις χαίρω, θυγατρὸς φωνῇ με πιθέσθαι.
χἠμεῖς αὐτῷ τότε τῆς ὀργῆς ὀλίγον τὸν κόλλοπ᾽ ἀνεῖμεν.
For a variety of reasons I believe we are again dealing with a sort of optical illusion. We must discriminate between accounts or predictions of these pleas as they are presented by a litigant’s opponents or, as in the case of Plato and Aristophanes, writers with anti-democratic or comedic purposes. We cannot assume affective delivery within the courtroom on the basis of verbal similarities to appeals enacted outside of courts. We must recognize the function of these pleas in the overall framework of a lawcourt pleading. Above all, we must be alert to differences between professional and amateur speaking styles.
The arch reference to Thrasymachus by means of a Homeric-sounding periphrasis, literally “the strength of Chalcedon,” is probably a backhanded compliment to the power of the eleos performed according to his instruction.  Aristotle’s disdain for the performative elements of oratory  presumably explains the brevity of his remarks on Thrasymachus:
Aristotle was quick to turn up his nose at what went on in Athenian courts, but I conjecture that Thrasymachus’ attention to this aspect of speechmaking shows that it was widely regarded as very important, and also as treacherous, and therefore not to be left to a speaker’s instincts. If that is so, we have direct evidence for concentrated attention to the critical role of affect in speaker and audience.
As part of an argument a fortiori (or perhaps question-begging), the speaker denies his father’s guilt. This passage is remarkable for describing the jurors’ pity as normally extended to the children put on display in spite of the father’s guilt, and granted in anticipation of the children proving better than their father.  The appeal is made by an implicit praeteritio, as if the defendant’s son is saying, “My father will not march his children before the court”; thus the verbs κλάῃ and ὀλοφύρηται refer to others, not to the defense speakers themselves. 
In his speech Against Meidias, Demosthenes not only omits the hedging ἴσως, but claims that the appeal to pity is the defendant’s only recourse:
Similarly, at §186 Demosthenes simply knows that Meidias will parade his children and lament:
Demosthenes himself could be said to have staged a pitiable parade through words alone by describing the effect a loss in court would have on his mother and sister if he does not defeat Aphobus (Demosthenes 28.19–22). It should be noted, however, that this entire speech is exceptionally vehement.
Forster’s English for the underlined phrase, “by the gods and deities I beseech you,” seems justified by the invocation of the supernatural world. And when linguistic associations of our own language are, evidently, augmented by the mention of supplication, which for our culture is an extreme form of self-debasement, we can easily fall into the assumption that the speaker is groveling, metaphorically or even literally. Just moments before the passage already cited the speaker had used a string of words that would seem to prove his desperation (2.44, again in Forster’s translation):
On the other hand, δεῖσθαι need not by itself carry much pathos. At 5.20 the speaker asks (δέὁμεθα; Forster: “we beseech”) jurors who were present at a certain occasion for their assistance in informing the other members of the panel. In contemporary English, “ask” or “request” would better render the speaker’s tone (these are the verbs chosen by MacDowell for his 2004 translation of Demosthenes 27–38). It is true that the very rich families involved in the dispute have lost much of their wealth, and commentators (e.g. Wyse 1904:44) regard the speaker’s argument as weak. But the man is, as Wyse says, “not a novice in litigation,” and the tone of the epilogos is hardly diffident.
The repeated collocation of the three verbs suggests a formula, almost a cliché – not that the use of a cliché must exclude emotion (Johnstone 1999:172n41).  Still, the near identity of the first two examples is, at the least, an indication that the speakers were following a template, and that the same words would be appropriate both to a preliminary captatio benevolentiae (in the first example) and to approach the speech’s conclusion (in the second), a point where we would expect a warmer rhetorical temperature. In the third, the request involves a recollection of a specific fact. Against these examples we can hold another passage from Isaeus (8.22) that is undoubtedly meant to describe – not enact – powerful emotion at work:
Here we have not a first-person address but a narrative; the subject is a mature, possibly old woman; the occasion is her husband’s funeral; moreover, she is reported to have wept. The occasion and the agent are compatible with an emotional outburst. This seems to me utterly distinct from the nearly formulaic requests with which it shares some vocabulary. When an expert speaker like the ex-actor Aeschines presented his aged father and, perhaps, mother at 2.147–148,  he had the means to excite pity by vocal inflections and posture, whether drawn from life or from stage conventions. By virtue of his age alone, the spectacle of his ninety-four-year-old father was no doubt capable of exciting pity. But the entire passage, which runs from 146–152, is filled with objective claims about his family’s rectitude and public services, a list that seems ill suited to histrionic delivery. 
In the last sentence Aeschines condemns Demosthenes as “unmanly and effeminate in his temperament [orgê],” which is implicitly contrasted with his own and his family’s masculinity. Aeschines is, to be sure, asking the jurors, and even the gods, to save him from execution (see §180; cf. Demosthenes 19.31), but the contrast he implies between Demosthenes and himself indicates (if it does not prove) that he was guarding against any sign that he was exhibiting the very weakness he hoped to pin on his enemy.
To this we can add that at §§4 and 24 the speaker claims to have been stoic under circumstances of physical danger.
Despite projecting the picture of his future life as superlatively wretched (ἀθλιώτατος), the defendant cites his military, which is to say his manly, achievements. In the second clause of the last sentence he boasts that he has been consistently kosmios, the very quality I have proposed as encapsulating the “civic personality” skillful forensic speech aimed to display.  Manliness did not exclude manifestations of happiness and grief in private,  but in court a man was well advised to keep a stiff upper lip even when – perhaps especially when – he was asking for pity.
At first reading, this may seem to recommend a frankly mimetic style, advice that would of course threaten my general thesis – that professional speech aimed at the restraint of speakers’ affect – but Aristotle is not going that far. The interpretation of the last sentence is crucial, for it appears to report that a plangent delivery succeeds in Attic courts; worse, a style both plangent and dishonest. The speakers who are so characterized may well be working to overcome an objective deficiency in the honesty of their pleadings.  And in the next section Aristotle appears to recommend naturalism in forensic speech:
It is important to keep in mind that Aristotle is habitually aware of gradations, even if he does not make the point explicitly at every step, and there is no reason to think that his prescriptions here are deviations from his ingrained practice. Very soon he is back to his usual caution:
And his specific advice requires a deliberate calibration and recalibration of the artful and the ingenuous:
Note the sequence. The text has moved from (a) a suggestion that shouting in the disorderly manner of crowds (θορυμβοῦντες) might be effective, to (b) the advice to make the delivery run counter to the words’ meanings, to (c) a warning not to allow the mismatch of surface content and delivery to go too far. Aristotle is not, after all, suggesting that one go to court and “let it all hang out.”  There is a tantalizing generic mention of professional speechwriters at 1404a34 (one of just three appearances in the Rhetoric of the word logographos), but no explicit comment on how they would usually advise a client on the matter of emotionalism in the composition and delivery of a speech. It would be particularly interesting to know how a professional would advice the rustic (ἀγροῖκος), whose style Aristotle says would be different from that of an educated man (πεπαιδευμένος).