My family got me a Penguin Edition of the Selected Works of Cicero. My attention was drawn to a speech he published from his prosecution of Gaius Verres, a Roman governor of Sicily. The book provides a scholarly introduction, which provides the “tactics of the opposition,” as they are described.
First, the opposition tried to put up a false prosecutor, Quintus Caecilius Niger – probably an ex-slave of the Caecilii Metelli – who was really on their own side. Then they attempted to occupy the court with another case altogether, in the hope that Verres’ trial would be postponed until the following year, when more complaisant judges would be available.
Cicero’s prosecution was successful. Verres fled the city during the trial and was later killed by Mark Antony, who also killed Cicero.
The first prong of the strategy was to delay proceedings by litigating who could prosecute Verres in the first place: the Roman equivalent of trying to disqualify the prosecutor’s office. These motions are often used tactically to waste time and force the prsoecution to reveal theory and witnesses.
The second tactic was crowding the docket and exploiting the court calendar so that the case would be postponed. Roman courts had a finite number of days that they were in session. Moreover, the composition of the courts changed meaningfully from yea rot year. Modern courts also operate under severe docket restraints and judicial-assignment systems that can make timing affect the outcome.
Modern equivalents include aggressively seeking continuances (often framed as “need time to investigate,” “new discovery,” “late disclosure,” “expert unavailability,” “substitution of counsel”), filing motion packages that require hearings and written findings (suppression, severance, change of venue, Pitchess/Brady litigation, admissibility of experts, complex discovery), and pursuing interlocutory review when available (writs, appeals from disqualification orders, etc.). The strategic objective is often the same as the Roman one: get to a procedural inflection point where the decision-maker changes. Specifically, the defense can get a different judge after reassignment, a different jury pool due to fading publicity, a different set of trial-ready witnesses, or simply a weaker prosecution as memories decay.
There’s a flip side to this little anecdote. Four years after the prosecution of Verres, in 66 B.C.E., Cicero himself caused a public outcry when prosecuting C. Manilius, who demanded several days to prepare a defense. Cicero granted only one day, which was widely viewed as inadequate. Indeed, in California law a defendant must have at least 2 days to prepare for a preliminary hearing.
DA in CA 