Cicero – the simple art of legal advocacy

Cicero – the simple art of legal advocacy

Ask people to name a famous lawyer in history and they would struggle. After all, the most prominent lawyers in English history – such as Sir Edward Coke and Lord Mansfield – are not exactly household names. In particular, advocacy is generally regarded as an ephemeral art, not least because once spoken, a lawyer’s words are neither recaptured nor recorded in full for subsequent generations. Instead, only fragments or soundbites survive.

But when today’s lawyers read about the great men and women who went before them arguing their case in court, one historical figure stands head and shoulders above all others in the lawyers’ pantheon: Marcus Tullius Cicero.

For his reputation to have endured for more than 2000 years, Cicero must have been quite special. And indeed, he was. Not just a lawyer, he was a polymath: statesman, orator, and philosopher, he also served as a consul. In the century before Jesus was born, he was the best-known lawyer of his day in the expanding Roman empire. The fact that his name has endured to the present day is a tribute to his lasting reputation, arguably making him the greatest lawyer who has ever lived.  

So who was Cicero? Born in 106BC, he came from a municipal family of the Roman equestrian order. Without great wealth and from relative obscurity, Cicero rose to fame at a time of conflict and chaos. Much of the 1st century BC was marked by civil war, which ultimately led to the rise of the soldier turned dictator, Julius Caesar. By contrast, Cicero favoured traditional republican government. Following Caesar’s death, Cicero attacked Mark Antony in several speeches. Labelled an enemy of the state, he was eventually executed in 43 BC, a year after Caesar’s celebrated demise. His severed hands and head were then put on public display as a deterrent to others.

Were it not for the written word, Cicero might have become just a footnote in history. But critically, in addition to his other talents, he was also a prolific writer. And it is through his surviving written work that we can still appreciate Cicero’s immense talent. His writings included books of rhetoric, orations, philosophical and political treatises, and letters. His influence on the Latin language that he spoke so eloquently was enormous, cascading down the centuries right across Europe. Notably, he coined words in Latin for philosophical concepts that remain with us today: evidentia, humanitas, qualitas, quantitas, and essenti. Their contemporary English language equivalents are self-evident.

Cicero’s letters were rediscovered in the fourteenth century by Petrarch, fuelling the Renaissance interest in Roman culture. According to one historian, “the Renaissance was above all things a revival of Cicero, and only after him and through him of the rest of Classical antiquity.” His prestige was further enhanced in the eighteenth century by the Enlightenment thinkers: Locke, Hume and Burke all championed his work, ranking it among the most influential in European culture.

According to Plutarch, who wrote about Cicero in the first century AD, he most wanted to be remembered most for his philosophical writing: 

“And yet he often desired his friends not to call him orator, but philosopher, because he had made philosophy his business, and had only used rhetoric as an instrument for attaining his objects in public life. But the desire of glory has great power in washing the tinctures of philosophy out of the souls of men, and in imprinting the passions of the common people, by custom and conversation, in the minds of those that take a part in governing them, unless the politician be very careful so to engage in public affairs as to interest himself only in the affairs themselves, but not participate in the passions that are consequent to them.”

Here, the greatest lawyer in Rome insists that he wanted to be remembered as a philosopher, not a lawyer. But it is as a lawyer that we now remember Cicero most. To appreciate his legal work, particularly as a public orator, we are remarkably fortunate to have 52 of his 88 recorded speeches on behalf of his clients.

Cicero became a lawyer during his early twenties. His precocious talent soon made an impact. The first surviving speech is a private case (pro Quinctio), delivered when he was just 26, although he had already undertaken several defences by that time. Over more than three decades, his legal speeches contain arguments across a broad range of issues: provincial maladministration, usurpation of citizenship rights, violent dispossession, poisoning, bribery, and political offences.

But murder is what made him famous. It was, of course, a routine fact of life in Ancient Rome. Cicero’s first big public case which survives is the defence of Sextus Roscius who was charged with the appalling crime of patricide. He took the risk of accusing other people of the murder, which could easily have led to his own death in revenge.  But thanks to the power of his oratory, Roscius was acquitted.

In another murder trial in front of a jury, Pro Roscio Amerino, Cicero highlighted the boldness and greed of two of the accusers, telling jurors that, motivated by greed, they were the more likely perpetrators of the crime. Through the power of his rhetoric, Cicero triumphed once more.

Cicero’s most celebrated case, Pro Milone, was conducted in 52BC on behalf of his friend, Titus Annius Milo, who was accused of murdering Publius Clodius Pulcher on the Appian way. After delivering his defence speech, which was predicated on the argument that the killing of Clodius was lawful since it was an act of self-defence, Cicero then wrote it down for posterity.

The speech includes an extensive character assassination of Clodius, whom he characterises as an invidious, malevolent, effeminate individual with a lust for power who organised an ambush on Milo. He also provides abundant supporting evidence to underpin his line of argument. By contrast, Milo is continuously depicted as a ‘saviour of Rome’ with a catalogue of virtuous actions.

Even though Milo was eventually convicted by a margin of 38 votes to 13, and then exiled to Massilia (Marseille), the surviving text of his speech is widely considered as one of Cicero’s finest works: the centrepiece of his rhetorical repertoire sets out the facts, demonstrates his use of legal arguments, and reveals his exposition of character combined with emotional appeal.

Cicero’s forensic speeches defined advocacy as an artform: designed to ensure that the person whom he defended was acquitted or the person he prosecuted was found guilty. Helpfully, he became the first lawyer to write down some of the essential rules of advocacy:

  • Speak clearly
  • Speak easily but not too much, especially when others want their turn
  • Do not interrupt
  • Be courteous
  • Deal seriously with serious matters and gracefully with lighter ones
  • Never criticise people behind their backs
  • Stick to subjects of general interest
  • Do not talk about yourself
  • Above all, never lose your temper.

Cicero understood that if they are to succeed, there is a fine balance between art and logic which successful advocates must achieve. For any contemporary trial lawyer, these simple points are equally as valid in a court today as they were more than two millennia ago.

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com