At the time of this writing, much of the attention of U.S. legal scholars is directed at the televised trial of Kyle Rittenhouse. This article does not address the merits of either side of the case; instead, we focus on a perplexing problem in litigation: how to keep the lawyers from dragging the case out longer than necessary.
The Commonplace Fun Facts Legal Department advises that the second rule taught in law school is, “Never use one word where ten will suffice.” The first rule, in case you are interested, is, “Answer every question with, ‘It depends.'”
The second rule appeared to be very much in practice as the presentation of evidence in the Rittenhouse trial came to an end. When the prosecutor said he wanted 2.5 hours for closing arguments, Judge Bruce Schroeder tried to dissuade him from taking that much time. He quoted a federal judge, saying, “the brain cannot absorb what the seat cannot endure.” He also invoked the words of President Franklin D. Roosevelt, who advised a speaker to “be sincere, be brief, and be seated.”
The phenomenon of loquacious litigants did not originate in the 21st century. In ancient Greece, the Athenians developed a system for preventing the parties from dragging the proceedings out too long. They filled a container with water and let it flow out of a hole at the bottom. When the container ran out of water, the litigant ran out of time.
The contraption was known as the clepsydra. It was, quite simply, a water clock.
Aristotle wrote about the practice in The Athenian Constitution (click on the link to read online or purchase a copy at the bottom of this article). He recorded that different amounts of water were used, depending on the seriousness of the case being heard:
Four cases are taken in each of the categories defined in the law, and the litigants swear to confine their speeches to the point at issue. If it is a day for public causes, the public litigants are called, and only one case is tried. Water-clocks are provided, having small supply-tubes, into which the water is poured by which the length of the pleadings is regulated. Ten gallons are allowed for a case in which an amount of more than five thousand drachmas is involved, and three for the second speech on each side. When the amount is between one and five thousand drachmas, seven gallons are allowed for the first speech and two for the second; when it is less than one thousand, five and two. Six gallons are allowed for arbitrations between rival claimants, in which there is no second speech. [emphasis added] The official chosen by lot to superintend the water-clock places his hand on the supply tube whenever the clerk is about to read a resolution or law or affidavit or treaty. When, however, a case is conducted according to a set measurement of the day, he does not stop the supply, but each party receives an equal allowance of water. The standard of measurement is the length of the days in the month Poseideon…. The measured day is employed in cases when imprisonment, death, exile, loss of civil rights, or confiscation of goods is assigned as the penalty.The Athenian Constitution, Part 67
It was important that some method be used for maintaining order. If you are imagining a trial with a setting similar to those of today’s courtrooms, think again. Juries in those days typically had at least 500 members and could have as many as 1,500. Aristotle explained, “Most of the courts consist of 500 members…; and when it is necessary to bring public cases before a jury of 1,000 members, two courts combine for the purpose, the most important cases of all are brought 1,500 jurors, or three courts.”
About 6,000 people were selected each year to be in the pool of potential jurors. With a population of 30,000-40,000 citizens at the time, that represented as much as 15% of the citizenry being on call for jury duty at any given time.
Fortunately for the efficient administration of justice, unanimity was not necessary for a jury to render a verdict. At the conclusion of the case, the crier (who was, essentially, the court clerk), calls out that if any litigant objects to any of the evidence submitted, he must do so at that time. Once the case is submitted to the jury, it is too late to bring any objections.
Aristotle explained the jury deliberation process:
The ballot balls are made of brass with stems running through the center, half of them having the stem pierced and the other half solid. When the speeches are concluded, the officials assigned to the taking of the votes give each juror two ballot balls, one pierced and one solid…. Two urns, one of brass and the other of wood, stand in the court, in distinct spots so that no one may surreptitiously insert ballot balls; in these the jurors record their votes. The brazen urn is for effective votes, the wooden for unused votes; and the brazen urn has a lid pierced so as to take only one ballot ball, in order that no one may put in two at a time.The Athenian Constitution, Part 68
The party with the most votes was declared the winner. If there was a tie, the defendant prevailed.
The whole system, water clocks, voting with brass tokens, and getting a quick resolution based on the vote of the majority definitely has some appeal. Consider how different things might have been if the ancient Athenian system had been followed in the Disproportionate Assets Case of J. Jayalalithaa. (Read: Contemplate the Variegated Cancerous Concoctions of the Asphyxiating Snare in the Escalating Venality of a 19-Year-Long Court Case).