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Home , Appeal to consequences, Appeal to tradition, Complex question, Equivocation, Etymological fallacy, Fallacy of division

University of Ottawa Faculty of Law (Civil Law Section)

From the SelectedWorks of Hon. Gerald Lebovits

September, 2016

Say It Ain’t So: Leading Logical in Legal –Part 2 Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/298/ SEPTEMBER 2016 VOL. 88 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue Enhance Your Bowing Out Ethically Firm Economics “Non-Lawyering” Get in the Cloud Define a New Practice Skills The First Secret Service The Law Practice Management Issue Edited by Marian C. Rice THE LEGAL WRITER BY GERALD LEBOVITS

Say It Ain’t So: Leading Logical Fallacies in Legal Argument – Part 2

art 1 of this column, which 3. Accent mean the same thing in both con- appeared in the July/August An accent creates an ambigu- texts.”6 P2016 issue of the Journal, covered ity in the way a word or words are Example: Mr. Parker told his friends formal fallacies in legal argument. accented. that he passed the bar. His friends Example: A reporter asks a member congratulated him on his accomplish- Informal Fallacies of Congress whether she favors the ment. Informal fallacies are fallacious because President’s new missile-defense sys- of their content. The following is a list tem. She responds, “I’m in favor of a of informal fallacies and what makes missile defense system that effectively uses them fallacious. defends America.”2 ambiguous language The fallacy: Her answer could mean 1. One-Sided Argument that she favors the President’s missile- to hide the truth. When crafting , “[i]t is fal- defense system or that she opposes it lacious to ignore countervailing evi- because the system is not effectively The fallacy: Mr. Parker equivocated dence or arguments in attempting to defending America. She creates an the meaning of passing the bar. Pass- persuade.”1 in which word is accented. ing the bar has two meanings. Mr. Example: The reputation evidence If the word “favor” is accented, her Parker might have lied in suggesting shows that the defendant is the kind of answer is likely in favor of the missile- that he passed the bar exam. He could person who’d never killed a bug. The defense system. If the words “effec- simply have walked past the bar in a evidence also shows that he’s easygo- tively defends” are accented, she likely courtroom separating the public from ing and has lots of friends. Therefore, opposes the defense system.3 the well where the lawyers argue and the defendant didn’t kill his wife. the judge sits. The fallacy: The reputation evidence 4. might be true and relevant, but coun- The complex-question fallacy “occurs 6. tervailing evidence might refute the when the question itself is phrased in The fallacy of “the red herring is a conclusion. such a way as to presuppose the truth deliberate diversion of attention with of a conclusion buried in that ques- the intention of trying to abandon 2. Amphiboly tion.”4 the original argument.”7 It “divert[s] It’s fallacious to argue based on an Example: “Why is the free market so attention by sending the ambiguity in the grammatical struc- much more efficient than government chasing down the wrong trail after a ture in a sentence. regulation?”5 non-issue.”8 Example: Ms. Smith hit and injured The fallacy: The question assumes Example: The prosecution argued at a person while riding his motorcycle. that a free market is more efficient than trial that the defendant acted immor- She should be held accountable. government regulation. A free market ally. The defense attorney asserted The fallacy: It’s impossible to con- might or might not be more efficient, that morality is subjective and that clude from the premise that Ms. Smith but one may not assume a fact not yet there’s no single definition of - should be held accountable for the in evidence. ity. injury. Based on the grammatical struc- The fallacy: The defense attorney ture of the premise, we don’t know 5. Equivocation diverted the conversation from the whether she was driving the motor- Equivocation uses ambiguous lan- defendant’s actions to a discussion of cycle. The ambiguity in the structure guage to hide the truth. If “the same morality. of the sentence makes the conclusion word or form of the same word is invalid. used in two different contexts, it must Continued on Page 57

64 | September 2016 | NYSBA Journal The Legal Writer Continued from Page 64 an individual or group is allowed to Peterson to take antibiotics. Peterson do something, everyone should be took the antibiotics because Stevens, a 7. allowed to do it. partner, must be smart. The straw-man argument is a com- Example: Mr. Mozzarella is a mem- The fallacy: Mr. Stevens is an excel- mon fallacy that “involves refuting an ber of the Departmental Disciplinary lent attorney. Therefore, he must know opponent’s position by mischaracter- Committee for New York’s First Judicial how to treat a headache. The conclu- izing.”9 Department. But he violated the New sion to take the antibiotics is unwar- Example: Ms. Jones argues that the York Rules of Professional Conduct last ranted. His credibility doesn’t extend United States shouldn’t fund a space year. Therefore, it’s acceptable to to medicine. program. Mr. Smith counters that sci- unethically in Manhattan and the Bronx.11 ence classes are an important part of a The fallacy: A argument 14. student’s education. makes it “impermissible to justify one The etymological fallacy dictates that The fallacy: Mr. Smith is mischar- wrong by another.”12 That Mr. Moz- the present-day meaning of a word or acterizing Ms. Jones’s argument to zarella acted unethically doesn’t entitle phrase should be similar to historical include cutting funding for science other lawyers to act unethically. meaning. classes in schools. Smith can’t imply Example: In Muscarello v. United that Jones also wants to stop funding 11. States, 524 U.S. 125 (1998), the issue was science in school. The nirvana fallacy occurs when the how to interpret the phrase “carries writer rejects a solution to a problem. a firearm” and whether Congress 8. The solution is rejected because it isn’t intended by that term to include the A genetic fallacy occurs when one perfect.13 notion of conveyance in a vehicle.14 To “attempt[s] to prove a conclusion false Example: Mr. Brown doesn’t sup- define “carries,” Justice Breyer cited by condemning its source — its gen- port a new bill to reduce greenhouse several dictionaries showing that the esis.”10 gas emissions. He argues that this bill origin of the word “carries” includes Example: Ms. White is a member of won’t completely eliminate greenhouse “conveyance in a vehicle.” Congress. She drafted a bill that will gases and thus it shouldn’t be passed. The fallacy: Sometimes courts look to help fund law schools. People oppos- The fallacy: Mr. Brown rejects the bill a term’s language of origin, “[b]ut these ing White’s bill argue that because because it isn’t a perfect solution. It’s historical antecedents are not necessar- White lacks a law degree, the bill fallacious to argue against a bill on the ily related to contemporary usage.”15 shouldn’t be passed. sole ground that the bill isn’t perfect. Historical meaning doesn’t always The fallacy: The fallacy is that people Brown is entitled to hold out for a bet- coincide with present-day meaning. opposing the bill unfairly challenge it ter bill, but he can’t logically argue that because White wrote it. The opposition the bill should be rejected because it 15. Appeal to Popularity isn’t challenging the bill’s language or doesn’t advance all his goals. Appeal to popularity uses popular content. prejudices as evidence that a proposi- 12. tion is truthful. 9. , or Appeal Poisoning the well presumes your Example: The current trend is that to the Person adversary’s guilt by forcing your defendants are representing them- “Ad hominem” means “to the person.” adversary to answer a question. selves at trial. Therefore, all defendants An ad hominem fallacy attacks a person’s Example: The lawyer asked the wit- should represent themselves.16 , not the person’s ideas. ness, “When did you stop beating your The fallacy: Representing yourself at Example: Ms. Robinson argues that wife?” trial is the right thing to do. But a deci- mandatory sentences for criminals The fallacy: The question assumes sion to represent yourself is unwar- should be lowered. Mr. Johnson chal- that the witness used to beat his wife, ranted based on the premise. lenges Ms. Robinson because she’s a that he stopped beating his wife, that convicted felon. Therefore, Robinson he’s married, and that he’s married to 16. can’t be trusted. a woman. This fallacy suggests that if the conse- The fallacy: Mr. Johnson’s argument quences are desirable, the is fallacious. He attacks Ms. Robinson’s 13. Appeal to Authority is true; if undesirable, the proposition character. Johnson doesn’t challenge The “appeal to authority” fallacy is false. Robinson’s idea on its merits. assumes that a person who excels in Example: If there’s objective moral- one area is credible and authoritative ity, then good moral behavior will be 10. Tu Quoque in unrelated areas. rewarded after death. I want to be “Tu quoque” means “you do it Example: Ms. Peterson told Mr. Ste- rewarded; therefore, morality must be yourself.” Writers use tu quoque argu- vens, a partner at her law firm, that she objective. ments when they contend that because had a headache. Mr. Stevens told Ms.

NYSBA Journal | September 2016 | 57 The fallacy: The argument doesn’t The fallacy: Although no single wit- 23. address the merits of the conclusion. ness offered sufficient evidence to Circular reasoning is used when the The conclusion is reached by appealing convict the defendant, the totality of writer “assumes the truth of what one to the consequences of the result.17 the circumstantial evidence might be seeks to prove in the very effort to enough for a conviction. prove it.”23 17. Example: The defense attorney Appeals to emotion are frequently 20. Division argues this in summation: “My client used tactics in arguments and fall into Division is the converse of the compo- couldn’t have committed this crime. “the general category of many fallacies sition fallacy. If a group has a feature, He isn’t a criminal.” that use emotion in place of in the individuals in the group have that The fallacy: The fallacy in the argu- order to attempt to win the argument. feature. ment — even though reputation evi- It is a type of manipulation used in Example: The defendant was part of dence is admissible — is that the defen- place of valid .”18 a cult. The cult is known for commit- dant is innocent just because he’s not a criminal. The logic is circular. Circular- ity is an invalid method of reasoning.

The best way to avoid and detect fallacies 24. Scapegoating is to become familiar with them. Scapegoating passes to another target the blame for an unfortunate event. Example: The Widget Company Example: Judges may react to the ting violent acts. Therefore, the defen- manufactures cars. Widget didn’t pain and anguish a given law or doc- dant is a violent person. properly inspect its brakes in the cars. trine causes, and they may point to the The fallacy: The defendant must be a As a result, the brakes in Widget’s cars painful or existential consequences of violent person because he’s part of the were faulty. The faulty brakes caused that law as reason to change it.19 cult. The suggests many injuries. Widget blamed the The fallacy: Emotions shouldn’t be that the defendant is violent because Application Company for the faulty the basis on which to make decisions. the cult he’s a part of is violent. brakes. Application manufactured the Appealing to emotion is a powerful brakes for Widget’s cars.24 tool. But it’s logically fallacious. 21. Appeal to Ignorance The fallacy: The Widget Company’s The logical fallacy of appealing to argument relies on the scapegoating 18. Guilt by Association ignorance occurs by “forgetting that fallacy. Widget should have inspected Writers use guilt-by-association argu- absence of evidence is not evidence of the cars it sold. Widget passed the ments when they support or attack absence.”21 One can’t assume that a blame on to the Application Company a belief or person by an unrelated proposition is true or false just because because Application manufactured the association. some information is absent. faulty brakes. Example: Ms. Smith was convict- Example: Scientists can’t prove that ed of armed robbery. Ms. James was aliens haven’t visited earth. Therefore, 25. Non Causa Pro Causa friends with Smith. James was charged aliens must have visited earth. This fallacy occurs when the writer with conspiracy because of her friend- The fallacy: The lack of evidence in “incorrectly assumes an effect from a ship with Smith. this case is not evidence of the conclu- cause.”25 The fallacy: Ms. James is guilty sion. The conclusion is based on a lack Example: I forgot my umbrella today. because of her association with Ms. of evidence. Therefore, it’ll rain today. Smith. Their relationship is not evi- The fallacy: The speaker invalidly dence of guilt. 22. concludes it’ll rain. It’s impossible to Begging the question draws a conclude from the initial premise that 19. Composition conclusion based on an unproven it’ll rain. The assumes that assumption. To beg the question isn’t a feature of the individuals in a group is to evade the issue or to invite an 26. Fake Precision also a feature of the group itself. obvious question.22 The fake-precision fallacy occurs Example: The plaintiff’s case relies Example: Murder is wrong because “when an argument treats information solely on circumstantial evidence. No killing another human is wrong. as more precise than it really is. This witness for the prosecution showed The fallacy: The fallacy here is that happens when conclusions are based that the defendant committed the the premise is used to support itself. on imprecise information that must be crime. Therefore, the prosecution Murder is wrong, but the conclusion is taken as precise in order to adequately didn’t prove its case beyond a reason- invalid based on the premise. support the conclusion.”26 able doubt.20

58 | September 2016 | NYSBA Journal Example: “We can be 90 percent cer- 30. Hasty Generalization The fallacy: An argument is falla- tain that Bloggs is the guilty man.”27 The fallacy of a hasty generalization cious when it relies on an appeal to The fallacy: You can’t prove by a per- occurs when the writer takes a limited tradition. Merely because Law X has centage how certain you are of a person’s sampling to justify a broad conclusion. been followed for generations doesn’t guilt. This information is misleading. Example: Chief Court Attorney Sam- mean it should continue. It gives others an impression that the son never edits draft opinions from writer is confident that Bloggs is guilty. his law department. All chief court 34. attorneys are lazy. A special pleading is a fallacy peo- 27. The fallacy: Because one chief court ple use to claim that something is an The false-dilemma fallacy occurs when attorney doesn’t edit draft opinions, all exception, even without proper evi- the writer “make[s] choices based on chief court attorneys must be lazy. Just dence to support that claim. a perceived set of variables that do because Mr. Samson doesn’t edit drafts Example: Drunk drivers should be not effectively identify the real choices doesn’t mean that he or any other punished. But Mr. A is an exception. available to the decision-maker.”28 chief court attorney is lazy. Countless Today’s his birthday. Example: A lawyer asks a witness, can explain why only Samson The fallacy: That today is Mr. A’s “Would you say that the defendant doesn’t edit drafts. birthday isn’t an adequate reason for gets drunk about once a week, twice a an exception. week, or more often?” 31. Fallacy of The fallacy: The defendant is drunk The fallacy of accident occurs when 35. The Prosecutor’s Fallacy at least once a week. The possibility there’s an “improper application of a The Prosecutor’s Fallacy results from exists that the defendant never drinks. general rule to a particular case.”30 confusion between the probability The question posed allows only for a Example: Murder is illegal. Anyone that (a) any individual will match the limited number of options. who kills an ant should be charged description of the guilty person and with murder. (b) an individual who does match the 28. The fallacy: The general law that description is actually guilty. The speaker argues that once the first murder is illegal is improperly applied Example: The perpetrator was step toward a particular event is taken, to the specific case of killing ants. This described as seven feet tall, with blond the first step will inevitably lead to the is opposite of the fallacy of the hasty hair, walking with a limp, the exact worst possible outcome. generalization. characteristics of the defendant in the Example: Tuition for school is too courtroom. An expert testifies that the expensive. If the tuition increases, stu- 32. False Cause odds of any given person matching dents won’t be able to afford it. If False cause is also known as post hoc that description is 0.00000072 (72 out students can’t afford to go to school, ergo propter hoc. This means “after this; of 100 million). The prosecutor argues they’ll inevitably turn to a life of crime therefore, because of this.” This fallacy that the odds that the defendant is the to make money. assumes that because one event occurs guilty party are approximately 1.4 mil- The fallacy: The conclusion relies on after another, the first event caused the lion to 1. the slippery-slope fallacy. The prem- second. These types of “arguments fail The fallacy: The prosecutor has ises don’t support the conclusion that because they imply a causal relation- ignored the size of the population in students will become criminals if they ship without a basis in fact or logic.”31 question. The New York metropolitan can’t afford tuition. Example: Every time I brag about area has a population of more than how well I write, I submit a document 20 million people. If the case were in 29. Faulty Analogy with lots of typos. New York, the odds that the defendant The fallacy of faulty analogy occurs The fallacy: If you don’t brag about is the guilty party (without any other when items in an analogy are dissimi- your writing, you’ll submit typo-free information) are only 1 in 14.4, or less lar. When analogies are dissimilar, the documents. No causal link connects than 7 percent (i.e., 0.00000072 times conclusion becomes inaccurate. bragging and submitting typo-free doc- 20 million). Example: To illustrate an idea about uments. After reading through this list of security interests, Ms. Daniel relates fallacies, readers might find it difficult them to the principles under which 33. to believe that any argument can be bankruptcy contracts operate. An appeal to tradition suggests that a wholly free of them. The best way The fallacy: Bankruptcy contracts practice is justified because of its con- to avoid fallacies in arguments is to don’t function the same way security tinued past tradition. become familiar with them. The fol- interests do.29 The items in the analogy Example: Law X has been in effect lowing six guidelines, from University are dissimilar. The method of reason- for generations. Therefore, Law X of Memphis Professor Andrew Jay ing is inaccurate. shouldn’t be repealed. McClurg, are a good start for any

NYSBA Journal | September 2016 | 59 lawyer crafting fallacious-free argu- 5. Id. 19. Adapted from Ediberto Roman, Love and Civil ments:32 6. Regester v. Longwood Ambulance Co., Inc., 751 Rights, 58 How. L.J. 113, 123 (2014). 1. “The premises must be at least A.2d 694, 700 (Pa. Commw. Ct. 2000). 20. Inspired by Harold Anthony Lloyd, A Right but Wrong Place: Righting and Rewriting Citizens probably true.” 7. Bo Bennet, Logically Fallacious, https://www. logicallyfallacious.com/tools/lp/Bo/LogicalFal- United, 56 S.D. L. Rev. 219, 233 (2011). 2. “The essential premises must be lacies/150/Red_Herring (last visited June 6, 2016) 21. Julie Lurman Joly et al., Recognizing When the stated.” (emphasis deleted). “Best Scientific Data Available” Isn’t, 29 Stan. Envtl. L.J. 247, 270 (2010). 3. “The conclusion must at least 8. McClurg, supra note 1, at 90. 22. Inspired by and adapted from Gertrude Block, probably follow from the prem- 9. Id. at 89. Language Tips, 85 N.Y. St. B.J. 61, 61 (May 2013). ises.” 10. Daniel R. Ortiz, The Informational Interest, 27 23. Ramee, supra note 4, at 6. 4. “The conclusion cannot be used to J.L. & Pol. 663, 676 (2012) (internal quotation marks omitted). 24. Inspired by Sean Kane, Honda Finds Convenient prove itself.” Scapegoat in Takata, 35 Westlaw J. Automotive 1, *1 5. “Competing arguments must be 11. Inspired by Michael P. Scharf & Ahran Kang, (2016). Errors and Missteps: Key Lessons the Iraqi Special fairly met.” Tribunal Can Learn from the ICTY, ICTR, and SCSL, 25. Bo Bennett, Logically Fallacious, https://www. 6. “Rhetoric must not supplant rea- 38 Cornell Int’l L.J. 911, 935–36 (2005). logicallyfallacious.com/tools/lp/Bo/LogicalFalla- cies/95/False_Effect (last visited June 6, 2016). son.” n 12. L. Scott Smith, Religious Toleration and the First 26. W. Jerry Chisum & Brent E. Turvey, Crime Amendment, 22 Kan. J.L. & Pub. Pol’y 109, 135 Reconstruction 115 (1st ed. 2007). (2012). Gerald Lebovits ([email protected]), an 27. Madsen Pirie, How to Win Every Argument: The 13. Bo Bennet, Logically Fallacious, https:// Use and Abuse of Logic 79 (2006). acting Supreme Court justice in Manhattan, is www.logicallyfallacious.com/tools/lp/Bo/ an adjunct professor of law at Columbia, Ford- LogicalFallacies/134/Nirvana_Fallacy (last 28. A. Benjamin Archibald, The False Dilemma, 47 ham, NYU, and New York Law School. For their visited June 6, 2016). Boston B.J. 16, 16 (Sept./Oct. 2003). research, he thanks judicial interns Reid Packer 14. Adapted from Stephen C. Mouritsen, The Dic- 29. Adapted from Laura B. Bartell, Revisiting (Hofstra) and Ziqing Ye (Fordham). tionary Is Not a Fortress: Definitional Fallacies and A Rejection: Secured Party Interests in Leases and Execu- Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. tory Contracts, 103 Dick. L. Rev. 497, 535 (1999). L. Rev. 1915, 1939 (2010). 30. William J. Blanton, Reducing the Value of Plain- tiff’s Litigation Option in Federal Court: Daubert v. 1. Andrew Jay McClurg, The of Gun Con- 15. Id. Merrell Dow Pharmaceuticals, Inc., 2 Geo. Mason U. trol, 42 Am. U. L. Rev. 53, 96 (1992). 16. Inspired by John McAdams, It’s Good, and L. Rev. 159, 199 (1995). We’re Going to Keep It: A Response to Ronald Tabak, 33 2. Bradley Dowden, Internet Encyclopedia of Phi- 31. Maureen B. Collins, Losing Arguments, 90 Ill. Conn. L. Rev. 819, 821 (2001). losophy, http://www.iep.utm.edu/fallacy/#H6 B.J. 669, 669 (Dec. 2002). (last visited June 6, 2016). 17. Adapted from G. Fred Metos, Appellate Advo- 32. Andrew Jay McClurg, Logical Fallacies and cacy, 23 Champion 33, 34 (Mar. 1999). 3. Adapted from id. the Supreme Court: A Critical Examination of Justice 4. Neal Ramee, Logic and Legal Reasoning: 18. Bo Bennett, Logically Fallacious, https:// Rehnquist’s Decisions in Criminal Procedure Cases, 59 A Guide for Law Students, http://www.unc. www.logicallyfallacious.com/tools/lp/Bo/ U. Colo. L. Rev. 741, 841–42 (1988). edu/~ramckinn/Documents/NealRameeGuide. LogicalFallacies/29/Appeal_to_Emotion pdf (last visited June 6, 2016). (last visited June 6, 2016).

Attorney Professionalism Forum QUESTION FOR THE Continued from Page 56 NEXT ATTORNEY mately decide the case. If, on the other strongest assertion of impropriety, PROFESSIONALISM FORUM hand, you decide to resort to name and you have the evidence to support calling before the judge, especially your contention, you are unlikely to My client insists that we use a pri- where there may be issues of fact or irritate the judge, you will protect the vate investigator to “dig up” dirt on multiple interpretations of the cases reputation of you and your client, and his adversary to use in our litigation. I cited by opposing counsel, you may you will have diligently represented certainly can see the benefits of doing annoy the judge and undermine your your client’s interests. so, but I’m also concerned about the case in the long run. Judges do not Sincerely, ethical pitfalls and my obligations with want to spend their time overseeing The Forum by respect to a third-party over whom I attorneys that bicker about whether Vincent J. Syracuse, Esq. may not have control. What are the eth- each and every statement is an out- ([email protected]) ical issues I should be aware of? Should right or whether it is a matter of Maryann C. Stallone, Esq. I have my client retain the private interpretation. You may be correct ([email protected]) investigator? Would that protect me if when you say that your opponent is Carl F. Regelmann, Esq. the private investigator goes AWOL? lying. But you need to show the court ([email protected]) Am I responsible in any way for the that you are right. Telling the court Tannenbaum Helpern Syracuse private investigator’s actions if he or that you are right will not help if you & Hirschtritt LLP she is taking directions from my client cannot demonstrate it. If you judi- and is not adhering to the guidelines I ciously pick your battles over which provide? How do I protect myself? material misstatements deserve your A.M. I. Paranoid

60 | September 2016 | NYSBA Journal