Legal Strategies When You Can’t Deny Or Defend

Quintilian, Orator’s Education, 5.13 7-9

“Hence, what cannot be denied or put off must eventually be defended, whatever kind of case it is, or else just surrendered. We have demonstrated that there are two types of denial: either to say “this was not done” or to claim “what was done was not this.” Issues that cannot be defended or avoided must ultimately be denied and not only if there is some “redefinition” which might come to our aid, but also if there is nothing else but simple denial.

If there are witnesses, it is permitted to say much against them. If there is written proof, we can discredit the authenticity of the letter. Whatever the matter, there is nothing worse than a confession. The final option, when there is no room for defending or denying, is attacking the legality of the proceeding.”

Ergo quae neque negari neque transferri possunt utique defendenda sunt, qualiacumque sunt, aut causa cedendum. Negandi duplicem ostendimus formam, aut non esse factum aut non hoc esse quod factum sit. Quae neque defendi neque transferri possunt, utique neganda, nec solum si finitio potest esse pro nobis, sed etiam si nuda infitiatio superest. Testes erunt: multa in eos dicere licet; chirographum: de similitudine litterarum disserendum. Utique nihil erit peius quam confessio. Ultima est actionis controversia, cum defendendi negandive non est locus

Emotions in the Courtroom
nitial N: King James I of Aragon Overseeing a Court of Law, unknown illuminator c. 1290 – 1310. Courtesy of Getty Images

No Gain! Or, How To Defend Against A Charge of Conspiracy

Gorgias, Defense of Palamedes

“Someone claims that we made a promise to each other with money, he gave it and I took it. Was it only a little? Is it not likely that I took only a little money in exchange for tremendous efforts on my part? Or, was it a lot? How did I get it? How could he have brought it to me? Or did many people do it? If many people had done it, there would have been many witnesses of the conspiracy. But if one person did it, then he could not have carried much. Did they bring during the day or the night? There were many guards close together—it would have been hard to evade them. So it was at day? Well, daylight is hostile to these kinds of things.

Ok, let’s imagine this. Did I come out and take the money or did the man who brought it come inside? Both have their challenges. If I took it, how did I hide the fact from people inside and outside? Where could I have placed it? How would I have guarded it? If I used it, it would have been clear as day! If I didn’t use it, than what would I have gained from it?”

φήσει τις ὡς χρήμασι τὴν πίστιν ἐποιούμεθα, ἐκεῖνος μὲν διδούς, ἐγὼ δὲ λαμβάνων. πότερον οὖν ὀλίγοις; ἀλλ’ οὐκ εἰκὸς ἀντὶ μεγάλων ὑπουργημάτων ὀλίγα χρήματα λαμβάνειν. ἀλλὰ πολλοῖς; τίς οὖν ἦν ἡ κομιδή; πῶς δ’ ἂν ἐκόμισεν; ἢ πολλοί; πολλῶν γὰρ κομιζόντων πολλοὶ ἂν ἦσαν μάρτυρες τῆς ἐπιβουλῆς, ἑνὸς δὲ κομίζοντος οὐκ ἂν πολύ τι τὸ φερόμενον ἦν. [10] πότερα δὲ ἐκόμισαν ἡμέρας ἢ νυκτός; ἀλλὰ πολλαὶ καὶ πυκναὶ φυλακαί, δι’ ὧν οὐκ ἔστι λαθεῖν. ἀλλ’ ἡμέρας; ἀλλά γε τὸ φῶς πολεμεῖ τοῖς τοιούτοις. εἶεν. ἐγὼ δ’ ἐξελθὼν ἐδεξάμην, ἢ ἐκεῖνος ὁ φέρων εἰσῆλθεν; ἀμφότερα γὰρ ἄπορα. λαβὼν δὲ δὴ πῶς ἂν ἔκρυψα καὶ τοὺς ἔνδον καὶ τοὺς ἔξω; ποῦ δ’ ἂν ἔθηκα; πῶς δ’ ἂν ἐφύλαξα; χρώμενος δ’ ἂν φανερὸς ἐγενόμην, μὴ χρώμενος δὲ τί ἂν ὠφελούμην ἀπ’ αὐτῶν;

Rembrandt Historical Painting 1626.jpg
Rembrandt

Legal Strategies When You Can’t Deny Or Defend

Quintilian, Orator’s Education, 5.13 7-9

“Hence, what cannot be denied or put off must eventually be defended, whatever kind of case it is, or else just surrendered. We have demonstrated that there are two types of denial: either to say “this was not done” or to claim “what was done was not this.” Issues that cannot be defended or avoided must ultimately be denied and not only if there is some “redefinition” which might come to our aid, but also if there is nothing else but simple denial.

If there are witnesses, it is permitted to say much against them. If there is written proof, we can discredit the authenticity of the letter. Whatever the matter, there is nothing worse than a confession. The final option, when there is no room for defending or denying, is attacking the legality of the proceeding.”

Ergo quae neque negari neque transferri possunt utique defendenda sunt, qualiacumque sunt, aut causa cedendum. Negandi duplicem ostendimus formam, aut non esse factum aut non hoc esse quod factum sit. Quae neque defendi neque transferri possunt, utique neganda, nec solum si finitio potest esse pro nobis, sed etiam si nuda infitiatio superest. Testes erunt: multa in eos dicere licet; chirographum: de similitudine litterarum disserendum. Utique nihil erit peius quam confessio. Ultima est actionis controversia, cum defendendi negandive non est locus

Emotions in the Courtroom
nitial N: King James I of Aragon Overseeing a Court of Law, unknown illuminator c. 1290 – 1310. Courtesy of Getty Images

The Essential Good

Seneca Moral Epistles 45. 10-11

“Why do you waste my time in this thing you yourself call the “liar” [fallacy] about which so many books have been composed? Consider that my entire life is a lie. Provide proof for this and then, if you are sharp, argue it is true. It demands that things which are for the most part meaningless be essential. For what is not meaningless has nothing immediate in itself that it might be able to make someone lucky and blessed.

For, something is not necessarily good if it is somehow essential. Otherwise, we lose out on what is good, if we give this name to bread and porridge and the other things we cannot live without. What is good is always essential; but what is essential is not always good since there are surely very base things which are somehow necessary. No one is so ignorant of the worth of the word good as to water it down as one of the daily needs.”

Quid me detines in eo, quem tu ipse pseudomenon appellas, de quo tantum librorum conpositum est? Ecce tota mihi vita mentitur; hanc coargue, hanc ad verum, si acutus es, redige. Necessaria iudicat, quorum magna pars supervacua est. Etiam quae non est supervacua, nihil in se momenti habet in hoc, ut possit fortunatum beatumque praestare. Non enim statim bonum est, si quid necessarium est; aut proicimus bonum, si hoc nomen pani et polentae damus et ceteris, sine quibus vita non ducitur. Quod bonum est, utique necessarium est; quod necessarium est, non utique bonum est, quoniam quidem necessaria sunt quaedam eadem vilissima. Nemo usque eo dignitatem boni ignorat, ut illud ad haec in diem utilia demittat.

Image result for medieval manuscript seneca philosophy
Plato, Seneca and Aristotle

Politics and War, Little Change: Thucydides on the Speeches of Plataea and Thebes

Thucydides, 3.56.1-2: the Plataeans’ Complaint

“The Thebans wronged us in many other ways and you know the final thing yourselves, the very reason we are suffering now. For they took our city when there was a truce in place and, worse, during a holy month. We paid them back correctly according to the custom that is accepted by everyone—that it is sacred to defend yourself against an attacking enemy. Therefore we should not for any reason suffer at their hands now.”

‘Θηβαῖοι δὲ πολλὰ μὲν καὶ ἄλλα ἡμᾶς ἠδίκησαν, τὸ δὲ τελευταῖον αὐτοὶ ξύνιστε, δι’ ὅπερ καὶ τάδε πάσχομεν. πόλιν γὰρ αὐτοὺς τὴν ἡμετέραν καταλαμβάνοντας ἐν σπονδαῖς καὶ προσέτι ἱερομηνίᾳ ὀρθῶς τε ἐτιμωρησάμεθα κατὰ τὸν πᾶσι νόμον καθεστῶτα, τὸν ἐπιόντα πολέμιον ὅσιον εἶναι ἀμύνεσθαι, καὶ νῦν οὐκ ἂν εἰκότως δι’ αὐτοὺς βλαπτοίμεθα.

3.62.4: The Theban View on their Capitulation to Persia

“The whole city was not in control of itself when it did this: it is not right to blame it for what it did wrong when there were no laws”

καὶ ἡ ξύμπασα πόλις οὐκ αὐτοκράτωρ οὖσα ἑαυτῆς τοῦτ’ ἔπραξεν, οὐδ’ ἄξιον αὐτῇ ὀνειδίσαι ὧν μὴ μετὰ νόμων ἥμαρτεν.