Arguing to a Wall

Image source (they sell posters of this image).

Practicing law is the art of convincing others to do something they don't want to do. Lawyers do that with words. In the best case, the lawyer uses facts and the law to persuade, then listens to opposing arguments and modifies his argument based on the merits of the rebuttal.

Sometimes the dispute is legitimate. The set of facts can be interpreted in multiple ways under the law and both parties have a point. For instance, a female employee complains that her boss has sexually harassed her. Her facts? He slapped her on the ass when she was bent to pick up a file. His story? He was swatting a fly and accidentally slapped her. Part of a lawyer's job is sorting the details and uncovering the truth.

In the end, what actually happened can be confusing or unclear and the case comes down to what a jury would believe if the case was put to them. At this point in the process, the rhetoric kicks into high gear — lawyers love to talk, to explain, to cajole. There is a point in nearly every case where one or both lawyers' behavior decays into that which the public expects from them: saying anything to win the case.

But at some point, good lawyers will refuse to engage in that cajoling. Those lawyers will explain the costs of continuing litigation (including their own fees), explain the pros and cons of continuing litigation with their clients, explain how the case is going to look to a jury, and suggest that the parties negotiate to a conclusion.

Whereas bad lawyers will encourage their client's prejudices and one-sided view of the case (thereby increasing their fees). The will "divorce knowledge from justice" as it were to prevail in the dispute. This is the point in those cases where I become demoralized and want to quit. But this is also the point in the case where the opponent reveals his weaknesses and is most vulnerable.

Knowledge which is divorced from justice, may be called cunning rather than wisdom.
Marcus Tullius Cicero 

A savvy opponent can use the increasing vitriol to his or her advantage. To do so, look for the following types of remarks:

• Focusing on the attorney's skill or experience rather than the facts or the law — an ad hominem attack.
• Arguing points which the opponent is not making — straw man.
• Arguing new points when old ones are refuted — moving the goal post.
• Making up two alternatives and saying the opponent's point fits into the losing alternative — false dichotomy.

This is a very short list of fallacies you can see in legal writing and reasoning; there are many more. I see these and others in my work all the time. And why are these important? Because illogical arguments are like an intoxicating vapor to a court or a jury. If left unchecked, they can allure the fact-finder into an easy answer — something they may be looking very hard for. However, a skilled attorney can dissipate the vapor by simply pointing out the fallacy — no judge wants to be seen as irrational.

Your honor, while counsel's opinion sounds satisfying, it suffers from a fatal flaw: it does not flow logically from the established facts....

With that preamble, the attorney can set the course straight and move forward maybe to win, maybe to lose, but on the facts and law and not on fallacy.

Its important to note that other logical fallacies are inherent in the law, and learning how to fight them is difficult and separates good from great lawyers: the appeal to authority (all law is based on legal precedent — here's one person's opinion about why appeal to authority is not a logical fallacy in the law; I have a different take (the law requires consistency) and will write about it later) and appeal to emotion (before a jury, the sympathetic party has a huge advantage and some say you can combat it; more in a future post).

Learn and combat the logical fallacies — Learn to avoid them in your own life.

—Your Bear