Institutio Oratoria, Vol. III

...difficulty, we should attack it last of all, after discrediting the prosecution by demonstrating the falsity of the former, thereby disposing the judges to believe that all their arguments are equally unreliable. We shall, however, require to preface our remarks by explaining why we postpone dealing with the most serious charge, and by promising that we will deal with it at a later stage: otherwise the fact that we do not dispose of it at once may give the impression that we are afraid of it. 12 Charges brought against the past life of the accused should generally be dealt with first in order that the judge may be well-disposed to listen to our defense on that point on which he has to give his verdict. But Cicero in the Pro Vareno postpones his treatment of such charges to the conclusion, being guided not by the general rule, but by the special circumstances of the case.

13 When the accusation is simple, we must consider whether to give a single answer to the charge or several. In the former case, we must decide whether the question is one of fact or of law: if it is one of fact, we must deny the fact or justify it: if, on the other hand, it is a question of law, we must decide on what special point the dispute arises and whether the question turns on the letter or the intention of the law. 14 We shall do this by considering what the law is which gives rise to the dispute, that is to say under what law the court has been constituted. In scholastic themes, for example, the laws are sometimes stated merely with a view to connecting the arguments of the cases. Take the following case:

"A father who recognizes a son whom he has exposed in infancy shall only take him back after paying for his keep. A disobedient son may be disinherited."