By Dr. Ken Broda Bahm:
Remember the list of fallacies? For many of us, it might fall in the category of things we learned at one point in our lives, probably in a logic or communication class, and then mostly set aside in our practical lives. After all, it can seem a little pedantic, or even arrogant, to call them out. “Hey, that’s a fallacy!” isn’t likely to work when examining a witness or persuading a jury. You could point out, “Your honor, opposing counsel is resorting to the common tu quoque or, ‘you too’ fallacy, in pointing to my discovery behavior in order to defend his own.” That isn’t likely to get you very far either. So is it worth it to remember and use the fallacies at all?
My answer? Emphatically yes. You don’t need to call the fallacies out or to rely on simple identification as a form of refutation in order to benefit from the knowledge that a given argument suffers from a common form of weakness. Analysis is a good first step to response, and knowing the common fallacies is a good first step to analysis. Now is a good time to jog that memory because there is a new free eBook out, wonderfully laid out complete with clever illustrations: An Illustrated Book of Bad Arguments by software engineer Ali Almossawi. This short readable book provides a useful and entertaining overview of the main fallacies. Understanding those those fallacies and keeping them in mind is a good way to improve your thinking and advocacy at all levels, including in court. Drawing from the book, I’ll use this post to identify a few fallacies that I think are most common in legal persuasion, and then — and more importantly — share some thoughts on how to argue with a fallacy once you spot one.
Some Common Fallacies of Legal Persuasion
Fallacies are ways of arguing that seem to offer proof or persuasive merit, while not actually contributing support. In that sense of being pleasing counterfeits, they’re as much psychological as they are logical. Here are the ones that I think are most common in our context.
Post Hoc Ergo Propter Hoc: ‘After this, therefore because of this’ or, as the book refers to it, ‘Not a cause, for a cause.’
Shortly after the product redesign, that’s when the complaints and incidents started to occur…
Straw Man: Falsely characterizing your opponent’s argument in order to make it easier to refute.
My adversary seems to be saying that no one should be held responsible, no matter what the damage done…
Appeal to Ignorance: Pointing to an absence of evidence in order to prove something.
There is no evidence at all to show the Defendant’s testing was adequate…
False Dichotomy (also called the “excluded middle”): It means inappropriately framing a choice as between two opposites.
Either the witness is credible and we can trust what he said, or he isn’t credible and we have to doubt each part of his testimony…
Answering A Fallacy
Of course, that list could go on. But nearly all discussions of fallacies boil down to lists like the one above. In print, the lists tend to be long and, in some cases, obscure. Instead of continuing to build my own list, I would rather raise a question you don’t often see addressed in the many articles and posts on fallacious reasoning: What do you do with a fallacy once you spot one?
Step One, Remember that “Fallacy” Doesn’t Mean “False”
The term is frequently misused: “It is a fallacy to think a U.S. military strike in Syria will improve the situation.” No it’s not! It might be unproven, or unwise, or simply false. But it isn’t a fallacy, because that concept applies to the means of proof and not to the ultimate truth value itself. You can support a true statement with fallacious reasoning (e.g., “My name is ‘Ken’ because that’s what it says on my office door”). Just because you’ve recognized something as a fallacy doesn’t mean you’ve proven it false. Instead, fallacies are best thought of as “generic weaknesses,” in the literal meaning of the word “generic.” They’re faults of a certain type, and it is that generic part that helps you address the argument.
Step Two, Recognize the Type of Weakness
If simply naming a fallacy isn’t enough to refute the point, then the next step is to ask, “Why is this argument weak?” In the post hoc argument, for example, the argument is missing the middle step of causation. In a straw man, the problem is that the attack is based on a false target. An appeal to ignorance ignores both natural and legal burden of proof, and so on. Focusing on the reason for weakness tells you what to target in the case of the individual argument.
Step Three, The Recognition Reveals the Response
In practical argument settings like trial, classifying something as a “fallacy” seems academic because it is only an abstract point not a specific one. Your adversary would be right to say in effect, “Okay, you get debating points for that identification, but why am I wrong in this case?” Knowing there is a fallacy doesn’t answer that question, but it is a great starting point. So, if it is post hoc, don’t just explain that its post hoc, and — God forbid — don’t waste valuable time explaining either the logic or the Latin. Instead, focus on what is missing: the cause. If there is a simple and nonacademic way to explain the problem (e.g., this is like the rooster trying to take credit for the sunrise) then use that, but more importantly, focus on the specific weakness in this case rather than the generic weakness at a logical level (e.g., they cannot show a link between the redesigned product features and the injuries that occurred later on).
As with all points relating to argument, the challenge is to keep it out of the realm of “tactics” and solidly focused on the practical realm of argument substance. To be sure, no jury or judge will be impressed that you know your fallacies. But you should still know them, because that appreciation makes you a better analyst of claims. It promotes clear thought and effective expression, and it points you to where their substance is weakest.
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Other Posts on Argument and Logic:
- Don’t Defend A Strawman (And Don’t Attack One Either)
- Don’t Let Your Judge Reduce You to Absurdity
- Remember, it’s a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge
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Image Credit: Buster Benson, Flickr Creative Commons