It might seem better to consider the principles of altercation18 after covering everything pertaining to continuous oratory, since it takes place last in order [in a legal proceeding]. But altercation exclusively entails invention, making no use of organization and little of stylistic ornament, and not requiring anything special in the way of memory or delivery. And so I think it will not be out of sequence to discuss prior to the second of the five parts of rhetoric something that depends entirely on the first.
Other writers have omitted altercation entirely, perhaps on the grounds that it is covered by the rest of their instruction. For altercation consists of either attack or defence, about which no more needs to be said here, since whatever produces proof in a continuous speech does so as well in a brief and discontinuous engagement. We don’t say different things in an altercation, we just say them in a different manner, through question and response, a topic that was also covered in our discussion of witnesses. Nevertheless, since we have undertaken a work designed to be rather broad and no one can be called a perfect orator without this skill, let us devote some attention to this distinctive task as well, which is sometimes the chief factor determining victory. For in cases involving general quality, where the question is whether an act was right or wrong, continuous oratory is most important, with a speech usually being sufficient for addressing issues of definition or the determination of facts by artificial proof. In other cases (the most common type), which are decided by inartificial or mixed proofs, it is during the altercation that the conflict is most acute and speakers clash in close combat.
In the altercation our strongest points must be impressed on the judge’s memory; we must sustain all that we have committed to in our speech while refuting the false claims of our opponents. This is when the judge pays closest attention. A number of mediocre speakers have rightly earned renown as advocates thanks to their success in altercation. Others, in contrast, thinking they have done justice to their clients with a showy display of declamation, abandon the courtroom with their entourage of admirers and leave the decisive battle to inexperienced and often low-status colleagues. As a result, in private suits you may well see one advocate present the case, another defend it. If responsibilities are to be divided, surely the latter is the more important, and it is an embarrassment to the art of speaking if lesser men are of greater use to clients. In public cases, to be sure, the proclamation of the herald acknowledges the altercator in addition to the other speakers.
Altercation requires above all a quick and supple intelligence, and an assertive presence. There is no time to think. You must speak at once, and respond almost before your opponent has delivered his blow. On every issue the advocate must know his case not just in detail, but inside and out; in altercation it is especially important to have complete awareness of every person, circumstance, time and place. Otherwise the altercator will often have to remain silent or accept the promptings of others – who frequently, out of eagerness to say something, make foolish suggestions. And so it often happens that we are embarrassed by our trust in another’s stupidity. Nor do these prompters always speak privately: some turn the altercation into an open brawl. A whole host of people, infuriated, might cry out so that the judge hears something inadvisable and ends up learning that something damaging to the case is being covered up right before he is to make his decision.
And so the skilled debater must avoid the mistake of growing angry; no emotion is a greater obstacle to clear thinking or more likely to carry the speaker beyond the case at hand or induce him to give – and therefore receive – verbal abuse. Sometimes it even incites him against the judges. Restraint and occasionally even meekness are preferable. Refuting the statements of opponents is not the only strategy. They can be treated with contempt, made light of, even ridiculed. No occasion offers greater opportunity for wit and charm. Of course, this only applies if the case is being conducted in an orderly and professional manner. If the opposition is stirring things up, then we must be bold and courageously stand up to their shameless conduct.
For there are some speakers so brazen that they raise a great outcry and interrupt other speakers and throw everything into confusion. It will be necessary not just to avoid imitating them, but even to repel their onslaughts and crush their insolence by repeatedly calling on the judges or presiding magistrates to enforce the order of speaking. The task of the altercator isn’t suited to a retiring personality or one that is overly yielding; too often we make the mistake of describing as decent conduct what is really just weakness.
The most effective quality in altercation is acumen (keenness of insight). This does not arise from art (for nature cannot be taught), but it can be improved by art. Above all we keep before our eyes the issue in question and our desired outcome. When we do so, we will not drift into wrangling nor waste our allotted time in insults, and we will be quite happy if our opponent does just that.
Preparation for every occasion entails careful anticipation of possible assertions by the opposition and possible responses on our part. An additional technique consists of suddenly producing in altercation arguments that had been concealed in the set speech. This is similar to a surprise attack or incursion made from ambush. This is only to be attempted when there is no immediate response available to the opposition, even if they could so reply, given time. For it’s best to advance reliable arguments right away in the actual pleading, so that they can be restated often and at length.
It hardly seems necessary to explain that the altercator should never be merely frantic or loud in debate, or joke around like an ignoramus. Reckless behaviour might throw an opponent off his game, but it offends the judge. It’s also harmful to battle too long over points you cannot win. When a point must be conceded, it’s best to do so promptly. If there are many issues of dispute, you’ll seem more plausible on the others. If there’s only one, a frank admission often yields a milder punishment. Tenacious defence of a mistake, especially one that’s been caught, is a further mistake.
While the battle is underway, it takes a great deal of skill and strategy to draw out an adversary who is making a mistake and get him to continue his error for as long as possible, to the point where he becomes overconfident in his expectation of success. For this reason it’s a good idea to keep some arguments under wraps. Our opponent may press on, staking the whole case on what he imagines to be a weakness on our side, thus in the end making our proofs seem even more compelling thanks to his demands for them. It can even be useful to yield a point that the adversary thinks is to his advantage, if by grasping one advantage he is forced to yield something even better. Or set up two alternatives, either one of which hurts his case. This is more effective in altercation than in a speech, since in the latter we end up responding to ourselves, while in the former we trap the opponent in a kind of admission.
A keen advocate will closely observe which arguments influence the judge, and which he rejects. This can often be ascertained by some expression or remark or other action on his part. It’s then necessary to press on with the promising points and to retreat as gently as possible from those that are of no assistance. Doctors follow a similar course of action, as they continue or abandon treatments once they observe that the patient is accepting or rejecting them.
Sometimes, if a point can’t be developed easily, it’s good to introduce a separate topic and, if possible, divert the judge’s attention to it. What else can you do, if you can’t come up with a response, but find something to which your opponent also can’t respond?
In general, as I have said, altercation requires the same treatment as cross-examination, the difference being that altercation is a contest between advocates, cross-examination a struggle between witness and advocate. Practice in altercation is much easier. It can be very useful to adopt some subject, real or fictitious, with a fellow student, and to take the different roles in an altercation. This can even be done with questions of a simpler type. I want an advocate also to recognize that the proper order for presenting proofs to a judge is the same as with arguments: the strongest should be placed first and last. Those placed first prepare a judge to believe, while those placed last guide him to decide in our favour.