(Sony Pictures 1989)

This post continues the series on fallacies that I have faced while handling South Carolina appeals. The last one discussed ad hominem or personal attacks and suggested how to deflate them. This one covers a particular type of personal attack and when it may properly work.

In the “tu quoque” attack, one charges the opposing party with  hypocrisy. The argument is “Yeah, you’re another” or “you’re one to talk.” It is fallacious because two wrongs do not make a right.

Or do they? Two wrongs may make a right, or at least cancel each other out, in equity. A fixed principle in equity within South Carolina and elsewhere is that those who seek equity must come into court with “clean hands.” Wachovia Bank v. Coffey, 389 S.C. 68, 75, 698 S.E.2d 244, 247 (Ct.App. 2010)(explaining unclean hands doctrine). Likewise, “he who seeks equity must do equity.” Regions Bank v. Wingard Properties, Inc., 394 S.C. 241, 259, 715 S.E.2d 348, 358 (Ct.App. 2011)(explaining maxim). Hypocrisy may thus defeat equitable claims if you can tie it to the claims brought against your client.

Technically, these principles apply only in equity and not in actions at law. Aaron v. Mahl, 381 S.C. 585, 594, 674 S.E.2d 482, 487 (2009)(holding that the unclean hands doctrine does not apply in an action at law). Even so, hypocrisy may legitimately arise as an issue of the plaintiff’s comparative fault or negligence.

How do you counter it? The most direct counter is denying the claim. Folks do not like hypocrites, but dislike liars at least as much. Or you can draw distinctions to argue that the charge of hypocrisy is a distraction or “red herring” — another fallacy that deserves its own post.

Has anyone else dealt with a hypocrite in an appeal? Faced false charges of hypocrisy? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.

This post is one of a series on logical fallacies that I have faced in South Carolina appeals. This one covers the ad hominem fallacy in which one attacks the message by personally attacking the messenger.

This unfortunately occurs. For example, the South Carolina Supreme Court suspended a lawyer who handled a zoning dispute for a church. The lawyer said that the Town Manager had “no brains” and likened him to pagans who crucified Christ. In re White, 391 S.C. 581, 707 S.E.2d 411 (2011).

In another case, the South Carolina Supreme Court upheld the civility oath against challenges that the oath was unconstitutionally vague and overbroad.This oath requires lawyers to pledge, “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” The Court concluded that the State has an interest in prohibiting lawyers from attacking each other personally because such conduct compromises the integrity of the judicial process and undermines a lawyer’s ability to objectively represent his or her client. In re Anonymous Member of the South Carolina Bar, 392 S.C. 328, 709 S.E.2d 633 (2011).

Such personal attacks may also be counterproductive. Chief Judge Toal in her treatise advises that attorneys should not engage in personal attacks: “When attorneys vilify their opponents or otherwise show disrespect, they succeed only in losing the respect of the court. No matter how ludicrous the opponent’s arguments may be, they should be addressed on the merits, and the opposing party or counsel should not be attacked personally.”

How do you counter personal attacks without getting mired in the muck? Tip 72 in Bryan A,. Garner’s book, The Winning Brief, suggests the deflating opener. He cites a brief in which a former Fifth Circuit Judge began a reply brief by counting and quoting the invectives used against him, describing the “prodigious flow of pejoratives” as a “diatribe” that “would be embarrassing in a barroom, let alone this Court.” The author then quickly moved to the merits.

How do you deal with opposing counsel’s personal attacks? Please leave a reply or reach me at www.attorneyroberthill.com.

This post is one in a series on the logical fallacies that I have run across in handling South Carolina appeals. This one is on circular reasoning and begins with petitio principii, literally meaning “assuming the initial point.” It is better known as begging the question.

In an appeal I am handling, an insurance company is arguing that one of its policy exclusions is valid. I respond that case law shows that such exclusions are not valid. So far, so good. The argument over the exclusion’s validity is joined. But the company then replies that these decisions are distinguishable because they do not involve exclusions that are valid. I respond that the decisions show that such exclusions are not valid. And round and around we go. To distinguish the cases, the insurance company is forced to assume that its exclusion is valid — the very conclusion that it is advocating. This begs the question.

A similar fallacy is known as the complex question. It occurs when one asks a question that contains an unproven assumption. When did you stop beating your wife?  This has come up in an appeal of mine where opposing counsel suggested to the South Carolina Supreme Court that my clients were atheists. But the record citations from the trial were only to cross-examination questions that at best assumed that my clients were atheists. From the same record citations, I was able to show that the witnesses, in answering the questions, denied the assumption.

Have you run across circular reasoning too? We would love to hear from you. Please leave a reply or reach me at www.attorneyroberthill.com.