Win more often: Avoid fallacies in your advocacy

Paul Mark Sandler, BridgeTower Media Newswires

A fallacy is a mistake in reasoning. It can undermine your case. Therefore, it is important to examine your own planned written and oral presentations. Also, carefully consider opposing presentations to determine whether they “hold water” or are fallacious.

Remember, sound reasoning is at the heart of advocacy; it is the most effective tool of advocacy. Aristotle, in his work “Rhetoric,” stated that logic is the most potent ingredient in the art of persuasion, followed by emotion and ethos.

Interestingly, mistakes in reasoning are often overlooked by both proponents and opponents. Consider some of these common fallacies:

False premise

In a deductive argument, reasoning from general to specific via syllogism is fallacious, if one of the underlying premises is false. For example: All men are good. Socrates is a man, hence  Socrates is good. But the false premise of “all men are good” weakens, if not destroys, the entire argument.

Now transpose this example to an argument in court. Opposing counsel states: “Your honor, the complaint should be dismissed. The statute of limitations is three years (major premise). The complaint was filed four years after the alleged negligence (minor premise). Thus limitations is not tolled (conclusion).” Your response should be: “Your honor, the statute of limitations provides that the case must be filed within three years from the date of the negligence or when reasonably discovered (showing false major premise). Hence this is our case. The complaint should not be dismissed.”


Red herring

This fallacy presents irrelevant, or false, facts that distract  from the main point, in an effort to change the argument to a different direction. The concept of a “distraction like a red herring” originates from the sport of fox hunting, where an odiferous scent was spread across the track of the fox to throw the hounds off the scent.

Consider, for example: “You cannot accept the plaintiff’s expert’s opinion. He never even examined her. He only looked at the medical records.” Response: “The defendant’s argument is nothing more than a red herring when, in fact, the expert had no reason to examine plaintiff as her condition did not warrant it, and the medical records were thorough and accurate.”


Straw person

This fallacy involves the creation of a distracting position in opposing an argument, and then attempting to refute or destroy it. For example, in a case where the former wife claims the husband assaulted her, counsel for the husband tries to emphasize eccentric characteristics of the wife by suggesting she was difficult to live with.

This type of argument is a “straw person.” Point out the absurdity of its relevance, even if it is true. Also, refrain from including such arguments in your own presentations.


Ad hominem attacks

This fallacy involves a personal attack on an adversary and must be avoided. Take, for example, counsel who states the following during closing argument to opposing counsel in front of the jury: “Mr. Darrow, you should be ashamed of yourself for bringing this case, which has no merit.”

Such attacks can bring about sanctions, and can certainly demean your character. Further, subtle attacks in written memoranda and appellate briefs should also be avoided.


Slippery slope

This fallacy is based on the premise that if we take one small step in the wrong direction, more and more serious problems will arise as we go down a slippery slope. Imagine this argument in the courtroom: “If you do not find for the plaintiff in this slip-and-fall case, you will be encouraging other grocery stores to slack off on their responsibility to keep their floors safe for the customers to walk, resulting in more and more stores failing to keep their floors safe.” The fallacy here is that there is no basis in fact for such a statement, and the prediction is speculative — if not overreaching.


Non sequitur

This fallacy, which is related to the false premise, reflects an argument that does not follow from the prior statements. For example, counsel for the defense in closing argument is validating her client’s honesty when he took the stand in his own defense: “Ladies and gentlemen, during his testimony Mr. Gold looked you in the eyes so you know he was telling the truth. He had nothing to do with robbing the bank.” The fallacy here is glaring (no pun intended).  People who look you in the eyes when speaking may or may not be truthful. The conclusion, therefore, does not follow the premise.

These examples of fallacies are but the tip of the iceberg. Suffice to say that all of us need to take care that what we present in the courtroom to support our case “makes sense.” We also must be vigilant to recognize the fallacies or weaknesses in opposing arguments.


Paul Mark Sandler, trial lawyer and author, can be reached at pms@shapirosher .com.