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Take Care With Character Attacks

By Dr. Ken Broda Bahm:

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Late last week, as large crowds in Ferguson continued to protest the police shooting of the 18-year-old unarmed Michael Brown, Police Chief Thomas Jackson made two announcements. One, he released the name of the officer involved (Darren Wilson) after it was already released by the hacker goup Anonymous.  And two, he released surveillance footage showing what appears to be Brown stealing a box of cigars and shoving a store clerk. At first, the new disclosure seemed to change the narrative, raising the question of whether Officer Wilson was following up on the theft before the situation turned fatal. Hours later, however, the police chief clarified that at the time of the stop, the officer did not know that Brown was a suspect in a recent robbery.  The reaction from Brown’s family and other protesters was swift: By releasing a questionable video, the Ferguson Police Department was trying to assassinate the man’s character, blame the victim, and otherwise distract media and public attention from its own actions on that day.

This backlash based on the perception of irrelevant personal attack has its parallel in court: One side trots out a fact that they believe will dramatically reframe the story, and instead that fact ends up blowing up in its face and raising questions about its own motives and character. This negative evidence may have some arguable relevance, and may even get past the other side’s objections, but the jury still sees it as a distraction and an attempt to manipulate. The field of informal logic calls this the ad hominem fallacy, and empirical research shows that the approach is condemned when it is recognized. But there’s the rub: It is often missed when a personal attack is seen as a relevant argument. The question of whether a character attack is relevant or irrelevant is often ambiguous – and this is nowhere more true than in law where fact finders are asked to evaluate the credibility of parties and witnesses. Because character can matter in this setting, this post takes a look at the ad hominem – it’s meaning and effectiveness – as well as some practical ideas on how it’s defended and attacked in trial.

Avoid Ad Hominem: It’s the Point, Not the Person

The latin ad hominem translates “to the man.” It means that the argument is improperly directed toward the person making it and not toward the argument itself. Based on that meaning, a proper argument would be called something like ad logos, because it would be directed at the reasoning or logic of the point. The importance of the targeting, however, means that some arguments fall into the category of proper character attacks and not improper ad hominem:

    • Ad Hominem: Attacking the person instead of the point by making an argument that addresses only character and not the truth of the argument. E.g., Your science may prove the product is defective, but you cheat on your taxes.
    • Not Ad Hominem: Attacking the person in a way that addresses the truth of the point. E.g., You’re testifying under oath now, but the last time you testified under oath you were found guilty of perjury.

Recent theory and research on this distinction grows out of a perspective on argument that we owe to the Dutch. Led by theorists Frans vanEemeren and Rob Grootendorst (2004), the idea is that the rules of appropriate argument are held in place by “intersubjective agreement.” Essentially, if most people think an ad hominem is not appropriate, then in practice it’s not appropriate.

For practical persuaders like litigators, this is not just an ivory-tower academic concept. To the extent that irrelevant character attacks are recognized and condemned, then trial lawyers need to make their case without them. One relatively recent study (vanEemeren, Garssen & Meuffels, 2012) looked empirically at the effectiveness of the ad hominem and reached a couple of conclusions of relevance to litigators:

  • Ordinary language users will reject the straightforward use of ad hominem as unreasonable.
  • A ‘disguised’ ad hominem argument that mimics the form of a reasonable argument (say, an attack on qualifications to make an argument from authority) will, to those same language users, appear more reasonable.

This suggests that the relevance and the effectiveness of the attack on the person is contested terrain. A litigator cannot take for granted that a personal attack will be either accepted or condemned. It is how you handle it that matters.

Handle Character Without Assassinating

If aspects of a party’s or witness’s character are sometimes relevant and sometimes not, then the ways that relevance is conveyed is what counts. That suggests two approaches:

Clarify the Relevance

When you need to get into negative character evidence about an adverse party, draw a specific connection between the information you’re providing and the jury’s proper focus. For example, if the defendant in a fraud case has engaged in past scams, or has in other ways operated outside the constraints of honesty, then make that point clear:

Ladies and gentlemen, this information goes directly to the question of whether he was being honest then…and now. 

To lawyers steeped in the facts of the case, it may seem the height of obviousness to make that point. But that belief can cause litigators to operate under a kind of “assumed relevance” that leaves the jury outside of the circle. In making your target extra clear, it may even be useful to disclaim an interest in the irrelevant portions of the claim:

In telling you that the plaintiff in this case was a cocaine user, I want to make one thing clear: We do not care that this was against the law, and we do not care that he was keeping his family in the dark. That is not our concern. Our only concern is that he was keeping his doctor in the dark about a lifestyle choice that made this medical outcome more likely. 

Or, Call Out the Irrelevance

When you are on the receiving end of a character attack, you’ll need to chart a different course. Don’t discount the effect an attack can have. In Ferguson, for example, some people may logically see the security camera footage as irrelevant to the officer’s justification for shooting, but would still be perhaps less motivated to march in the street in support of someone who might have shoved a store clerk for a box of cigars. Even as jurors in trial can try to set it aside, character evidence still adds to the picture.

Still, that effect might be overwhelmed by the backlash — as it is in the streets of Ferguson as I’m writing. For many, the questions raised about the motives and the manipulations on the part of the Ferguson Police Department dwarf any questions about a prior and potentially unrelated robbery: This is about whether the shooting was justified and not about whether the victim had engaged in prior bad acts. Reframing it in that way makes it a net loss for the police. If they could defend the shooting, protesters think, then why bother with distractions focused on previous behavior?

One strategic question for those who are targets of character attacks is this: Do you follow that focus and refute the charges (and risk adding legitimacy to a focus on these points), or do you take the high road and focus primarily on the irrelevance and not the substance of the charge (and risk leaving the jury with a negative impression anyway)? That has to be weighed in the context of each case. But either way, focusing on the missing or strained relevance can help to reframe the question so that it points back at the those executing a character-assassination strategy: Why are they bringing this up? 

That is the question we come down to for the Ferguson police. For those critical of the shooting, the department’s approach suggests that they are more interested in tainting the victim than in defending its own actions. But for supporters of the department, it could mean that, even if Officer Wilson did not know about the theft, the robbery shortly before provides a reason why Brown might have struggled with the officer instead of cooperating. As in court, for both sides, the relevance is key.

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Other Posts on Credibility: 

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van Eemeren, F. H., Garssen, B., & Meuffels, B. (2012). The disguised abusive ad hominem empirically investigated: Strategic manoeuvring with direct personal attacks. Thinking & Reasoning18(3), 344-364.

Image credit: 123rf.com, used under license.