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While Athenians viewed gross abuse of litigation harshly and were apparently receptive to allegations that an individual was a “sycophant,” they acted rather moderately when it came to regulating the abuse of litigation. Although they implemented numerous measures that might discourage frivolous or false suits, none of these was an absolute obstacle to a creative litigant.

For example, a prosecutor of a public action who failed to win one-fifth of the votes cast by jurors was normally subject to a 1000-drachma fine and partial disfranchisement (atimia). While this made it dangerous to bring a patently ridiculous suit, the risk involved in bringing a somewhat plausible suit was presumably less since one had only to win one-fifth of the votes. A wealthy man, in particular, might be willing to take this gamble, especially if he was seeking to take vengeance on a personal or political enemy as was often the case. He might view the harm he would do his enemy (e.g. through a large fine or exile) as well worth the risk he faced: after all, whereas he only had to win just over half the votes cast to convict his enemy, his opponent had to carry over four-fifths of the jury to make the prosecutor subject to penalty. If a wealthy man was concerned about the financial penalty for unsuccessful public prosecutions, he could agree in advance to share the cost of the fine, if imposed, with other interested parties. If it was the partial atimia imposed on an unsuccessful prosecutor that troubled him, he might hire an agent to initiate the suit in his name. The “real” prosecutor could join his agent in the prosecution by participating in the trial as a supporting speaker (sunegoros); as a supporter, he would not be subject to atimia if the prosecution was disastrously unsuccessful.

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Aristotle (Aristot. Ath. Pol.).

While we hear of legal actions specifically available against “sycophants,” it is interesting that no prosecutions brought under this rubric are attested in our sources. Apparently, Athenian litigants were much more ready to complain about an opponent’s alleged sycophancy than to pursue such complaints through legal actions. One possible reason for this is that a charge of sycophancy would have been difficult to prove, since the nefarious activities involved were best conducted discreetly and out of public view. Another reason for this might be that potential prosecutors feared that they might be perceived as sycophants themselves: a natural line of defense against a prosecution for sycophancy would be for the defendant to argue that this prosecution was itself malicious and contrived. Athenians appear to have been aware that measures to control the abuse of litigation could themselves be abused. Once each year, Athenians allowed preliminary complaints (probolai) against sycophants before the Assembly; these complaints were limited, however, to no more than three against citizens, and three against resident aliens (metics) ([Aristotle], Constitution of Athens 43.5).

The fact that Athenians did not take harsher steps against “sycophancy” suggests that they did not want to discourage litigation unduly. A central part of the democracy was adjudication of private disputes and public actions by large panels of Athenians; stringent measures against the abuse of litigation might, in the Athenian view, have discouraged legitimate suits, as well as frivolous ones.

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