Leiden Law Blog

Pleading your own case. Famous lawyers on trial.

Pleading your own case. Famous lawyers on trial.

In 2012 the famous Dutch lawyer Bram Moszkowicz was summoned before the Disciplinary Council of the Dutch Bar Association. He did not go to court himself but let one of the lawyers at his firm represent him. The verdict made clear that the Council did not appreciate Moszkowicz’s absence. Should he have pleaded his own case? Lawyers usually speak on behalf of others in the courts of law. But sometimes they have to defend their own interests. A famous example is given by a speech by the Roman lawyer Marcus Tullius Cicero, called De Domo Sua (‘On his house’).

What were the events leading up to this speech? In 63 BC Cicero reached the position of consul, the highest office in the Roman Republic. During his year in office he had to deal with the Catilinian conspiracy to overthrow the Republic, which resulted in the execution of several Roman aristocrats. Though Cicero saw his actions as necessary and presented himself as saviour of the state, not everybody supported the choices he had made. Cicero began to lose ground in Roman politics after his consulate and at the same time managed to involve himself in a feud with aristocratic playboy Publius Clodius Pulcher. In 58 BC, after Clodius was elected tribune of the people (tribunus plebis) by means of a legal trick, he issued a law by which Cicero was banished as a penalty for his crimes.

Cicero left Rome and his beautiful house on the Palatine was burned down. But this was not enough for Clodius. He decided to dedicate a statue of the goddess Liberty on the exact same spot (of which Cicero later says that it was stolen from the grave of a Greek prostitute at Tanagra, Cic. Dom. 111). This was not only extremely humiliating to Cicero, whose reputation was now that of a tyrant from whom Rome had been freed, but it also made it very difficult for him to ever reclaim the ground on which his house had stood.

According to Roman law, once a thing has been dedicated to the gods it becomes their property and cannot be reclaimed by a previous human owner (see Gai. Inst. I,2-6). When Cicero was recalled in 57 BC, he could not reclaim his land unless he could prove before a court of law that the dedication of the statue on top of it had been invalid. Since this was a matter of sacral law, the case was tried before pontifices, the college of Roman high priests. Proving the invalidity of the dedication to them was easier said than done. The dedication could only be declared invalid if a) the required law on which it was based had not come into being correctly or did not contain the proper wording; or b) the rituals of dedication had been performed incorrectly. This was a very hard if not impossible argument to make before the pontiffs sitting as judges. Based on other historical sources –it seems the pontiffs had been involved in the creation of the required law in some way; and one of them had performed the necessary rituals himself.

From a legal point of view Cicero did not really have a case. But his rhetorical talents saved him. In a lengthy speech, in which he presents himself as the defender of the Roman Republic and Clodius as the scoundrel who wants dismantle it, by drawing heavily on the emotions of his audience and the judges, he managed to persuade the pontiffs to declare the dedication invalid and return him his land (Cic. Att. 4,2,3).

Cicero’s case makes at least one thing clear: it might not be such a bad thing for a famous lawyer to plead his own case after all.

2 Comments

T
Posted on January 28, 2014 at 22:36 by T

Yes, absolutely interesting story, well told here

Hans Daalder
Posted on January 14, 2013 at 10:48 by Hans Daalder

My compliments with this admirable and topical text, written in unusually good English as well!

N.

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