CBA Record January-February 2025

Private and Public Cases Legal disputes were private or public rather than criminal or civil. In private suits, the injured party squared off against the alleged troublemaker. The victim’s family prosecuted homicide cases. (Talk about adding insult to injury, a phrase evolved from fabu list Aesop, a Greek.) No one represented the state or the people, even in charges against the government. In public cases only, given the absence of government attorneys, any citizen (remember, any free-born Athenian male over age 30) could present a graphe , claiming injustice, regardless of personal involvement. (The precursor to our private right of actions.) A graphe was a written indictment submitted to the court. A defendant’s enemies launched public suits, but volunteers could do this too, as a source of income. (In America, these individuals are called contingency lawyers.) Citizens could propose a new law. The catch: They could be sued for proposing an unconstitutional law. If acquitted, the law passed; if convicted, the proponent was punished. (Worth bring ing back?) The potential reward for winning a public case would be con siderably greater than in private suits. Why? The purpose was to give an incentive for citizens to uphold the law for the city’s ben efit, sort of like qui tam actions. This forced litigants to be more strategic in making their arguments to the jury, especially because the plaintiff faced a heavy fine if he did not secure one-fifth of the votes. (The original version of fee-shifting.)

heard private cases, which sought to compensate the plaintiff rather than punish the defendant. No examination determined a juror’s fitness to sit on a particular case. (The sheer number of jurors explains why there was no voir dire ; otherwise, archons would have had to consult oracles for a sanity check.) “Jurors frequently had knowledge about a case beforehand and their minds made up.” John Oscar Lofberg, Sycophancy in Athens , The University of Chicago Libraries, 1917 at 11. “Appar ently, the most desirable juror was the one most familiar with the case.” Id . at 12. In Laws , none other than Plato urged making a juror familiar with a case a witness. (Plato had lots of good ideas. This is just one example.) Only free-born Athenian men over age 30 could be chosen for jury duty, about 30,000 individuals. Women, enslaved people, foreigners, and children were considered noncitizens. The large pool ensured a broad representation of social classes. Once selected, jurors could choose the cases they wished to attend, and the archon picked the appropriate number from the interested pool. (Imagine modern jurors doing that; judges would need barkers touting their courtrooms: “Step right up for a jaw-dropping, multi-million-dollar medical malpractice lolla palooza! See expert witnesses galore! Hear explosive testimony! Hurry, hurry, hurry!”) Jury duty was a civic honor and a compensated responsibility, akin to military service. (An oldie but goodie.) As Aristotle said in his Politics , “Law is a pledge that citizens of a state will do justice to one another.” Athenians were a litigious bunch. The playwright Aristo phanes, in his play The Peace , has a character say that Athenians “do nothing but try cases.” Similarly, in The Birds , Aristophanes observes, “The cicadas chirp away on their branches for a month or two; the Athenians chirp away at lawsuits continually all their lives long.” (With so many citizens required for the jury pool and each case, well, of course, Athenians did little else.) Initiating an Action Speaking of justice, the Ancient Greek word for justice, dike , is a formal, written complaint laying out the incident and defen dant’s transgressions. Dike shares etymology with the Latin iudi cia, related to judicia, jurisdiction, judiciary , and prejudice . Dike encompassed early notions of equality and figured prominently in private cases. To begin a lawsuit, the aggrieved party submitted a dike . Then, the plaintiff personally visited the defendant’s house, dragging along a few friends as witnesses, to notify the defendant of the court date. (I would have hired an oracle to accompany me— might as well have divine intervention on one’s side.) Before trial, the aggrieved party could supplement the dike with additional evidence or laws to strengthen their presentation.

The Trial Trials were held outdoors and usually lasted one day or less. Jurors voted without deliberations and by secret ballot immedi ately after a case concluded. Jurors voted up or down on the question of guilt and on which side’s proposed sentence to accept.

CBA RECORD 25

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