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 Fallacies in Legal Argument–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 fallacy 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 Equivocation 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 arguments, “[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 ambiguity 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. Complex Question might be true and relevant, but coun- The complex-question fallacy “occurs 6. Red Herring 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 audience 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 moral- 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. Straw Man 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 act 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 tu quoque argument 14. Etymological Fallacy 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. Nirvana Fallacy 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. Genetic Fallacy 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. Poisoning the Well tion is truthful. 9. Ad Hominem, 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 character, 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. Appeal to Consequences can’t be trusted. a woman. This fallacy suggests that if the conse- The fallacy: Mr. Johnson’s argument quences are desirable, the proposition 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.