Institutio Oratoria

A change in the tactics of defence is also often selected for censure. For example, Attius [*](pro Cluent. Iii. ) in his speech against Cluentius complains that Cicero insists on the letter of the law, and Aeschines [*]( Aesch. in Ctes. § 206. cp. also III. vi. 3. ) in his speech against Ctesiphon complains that Demosthenes refuses to consider the legal aspect of the case. It is however necessary to issue a special warning to declaimers that they should not put forward objections that can easily be met or assume that their opponent is a fool. As it is, owing to our tendency to think that the subject-matter of our speech may be drawn from our own fancy, florid commonplaces and epigrams designed to bring down the house occur to our minds with the utmost

1. A shrewd retort! Could it be otherwise?
2. A foolish question makes for smart replies.

Origin unknown.

But such a practice will be fatal in the courts, where we have to answer our opponent and not ourselves. It is said that Accius, when asked why he did not turn advocate in view of the extraordinary skill in making apt replies which his tragedies revealed, replied that in his plays the characters said what he himself wanted them to say, whereas in the courts his adversaries would probably say just what he least wanted them to say.

It is therefore ridiculous in exercises which prepare the student for the actual courts to consider what answer can be made before ever giving a thought to what the opposing counsel is likely to say. And a good teacher should commend a pupil no less for his skill in thinking out arguments that may be put forward for the opposite side than in discovering arguments to prove his own case.

Again, there is another practice which is always permissible in the schools, but rarely in the courts. For when we speak first as claimants in a real case, how can we raise objections, seeing that our opponent has so far said nothing?