Roman Law and the Legal World of the Romans

Civil Procedure

advance, the praetor could simply appoint that person, avoid ing the whole rejection process. (In this case, most of the quali fications just mentioned seem to have been waived, though this is not entirely clear, and women and slaves were still out.) In a typical common law trial, there is a division of labor between a jury, which, if it is used at all, is meant to decide factual questions (“Did he do it?” “What was the deceased cow originally worth?”), and the judge, who answers questions of law (“Does intention need to be proved to convict of murder?” “Can certain kinds of evidence even be mentioned at trial?”). In a Roman trial, the praetor’s formula limited the questions of law to be addressed at trial, but the iudex , as a practical matter, decided both kinds of questions. Moreover, as we shall see, the set of “questions of law” was rather different then. Both sides were typically represented by advocates and perhaps also by legal experts (where available; see Chapter 4 on the division of legal professions). Moreover, the iudex him self might seek outside legal advice. The procedure was highly adversarial; that is, the court acted as time keeper and ultimate decision maker, but it did almost nothing to help or constrain either sides in the service of “truth.” The plaintiff began by making a fairly long speech laying out his case, the defense spoke in opposition, and then the sides in turn presented what ever evidence and witnesses they had gathered. Neither side could subpoena witnesses or “discover” material in the hands of the other side. There were no objections to forms of evidence or argument during the presentations. In principle, this allowed for a lot of irrelevant rhetoric and personal attacks, though it

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