Institutio Oratoria

The judge naturally waits to hear what we can state in our behalf. If we make no statement, he cannot help believing that our opponent's assertions are correct and that their tone represents the truth. What are we to do then? Are we to restate the same facts? Yes, if the question turns on the nature of the act, as it will if there is no doubt about the commission, but we must restate them in a different way, alleging other motives and another purpose and putting a different complexion on the case.

Some imputations we may mitigate by the use of other words; luxury will be softened down into generosity,

For if they refuse either to defend or to state the facts, they will be giving away their whole case. If, on the other hand, they do propose to put in a defence, they must at least, as a rule, set forth what they intend to justify. Why then not state fully facts which can be got rid of and must in fact be pointed out to make that possible?

Or again what difference is there between a proof and a statement of facts save that the latter is a proof put forward in continuous form, while a proof is a verification of the facts as put forward in the statement? Let us consider therefore whether under such circumstances the statement should not be somewhat longer and fuller than usual, since we shall require to make some preliminary remarks and to introduce certain special arguments (note that I say arguments, and not argumentation), while it will add greatly to the force of our defence if we assert not once nor twice that we shall prove what we say is true and that the significance of the facts cannot be brought out by one opening statement, bidding them wait, delay forming their opinions and hope for the best.

Finally it is important to include in our statement anything that can be given a different complexion from that put upon it by our opponent. Otherwise even an exordium will be superfluous in a case of this kind. For what is its purpose if

Conjectural [*]( For this technical term = cases turning on questions of fact, see III. vi. 30 sqq. ) cases, on the other hand—that is to say questions of fact—require a statement, which will more often deal with the circumstances from which a knowledge of the point at issue may be derived than with the actual point which is under trial. When the accuser states these circumstances in such a manner as to throw suspicion on the case for the defence, and the accused has consequently to dispel that suspicion, the facts must be presented to the judge in quite a different light by the latter.

But, it may be urged, some arguments are strong when put forward in bulk, but far less effective when employed separately. My answer is that this remark does not affect the question whether we ought to make a statement of fact, but concerns the question how it should be made. For what is there to prevent us from amassing and producing a number of arguments in the statement, if that is likely to help our cause? Or from subdividing our statement of facts and appending the proofs to their respective sections and so passing on to what remains to be said?

Neither do I agree with those who assert that the order of our statement of facts should always follow the actual order of events, but have a preference for adopting the order which I consider most suitable. For this purpose we can employ a variety of figures. Sometimes, when we bring up a point in a place better suited to our purpose, we may pretend that it had escaped our notice;