Tag Archives: logical fallacies

SC Supremes: Cite the Entire Ruling

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Last month, I posted on attorneys who create accidents with contextomy. Sounds weird, I know, without defining the terms.

“Accident,” in this sense, is a logical fallacy in which one advocates a general rule without acknowledging any exceptions. Contextomy means taking something out of context. The post noted that the two often go together.

State v. Dawson, Op. No. 27238 (S.C. Sup.Ct. filed April 3, 2013)(Shearouse Ad.Sh. 15 at 14), shows the two at work.

At issue on appeal was whether a defendant is sentenced under the law in effect at the crime’s commission or the law in effect at the defendant’s sentencing. Defense counsel argued for the common law rule and cited a case saying that the common law governed.

Problem was that the case counsel cited held that the common law rule governed “in the absence of a controlling statute.” And counsel neglected to mention that part of the holding.

The omission did not escape notice. The Supreme Court pointedly observed that counsel omitted the qualifier about controlling statutes, and concluded that a statute did indeed control.

Truncating quotes is not new, and happened often enough for the courts to create safeguards. During trial, for example, a party may use Rule 106, SCRE, to get opposing counsel to introduce other parts of a writing or recorded statement into evidence once counsel introduces part of a  writing or recording. Rule 32(a)(4), SCRCP, likewise allows a party to require opposing counsel to introduce into evidence other parts of a deposition once counsel introduces any part of the deposition. Both rules make sure that counsel is not creating an accident with contextomy  — otherwise known as quoting out of context.

Has anyone else had opposing counsel truncate quotes on appeal? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.

 

 

 

 

 

 

 

 

Facing the “You Too” Fallacy on Appeal

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(Sony Pictures 1989)

(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.

 

 

 

 

 

 

Answering Personal Attacks in an Appeal

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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.

 

 

 

 

Fighting Circular Reasoning on Appeal

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20089505_100x100_padThis 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.

 

Refuting Fallacies on Appeal – One Way v. Only Way

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This post begins a series on logical fallacies that I have run across in handling South Carolina appeals. My thanks to D.Q. McInerny and his book, Being Logical, for naming these fallacies and for its clear examples.

A statute that I dealt with a while back applied when a child is harmed.  Counsel for one of the parents cited cases applying the statute to parental beatings, arguing that the statute did not apply because the parent did not beat the child. Problem was that the statute did not limit who it applied to or the type of harm required.

This is a fallacy known as “denying the antecedent.” The argument goes like this — if a parent beats the child, the statute is satisfied; the parent did not beat the child; thus the statute is not satisfied. Yet this confuses one way to satisfy the statute with the only way to satisfy it.

McInterny’s example makes the point clearer: If Louise is running, then she is moving; Louise is not running, thus she is not moving. But there are, of course, other ways to move besides running, just as there are other ways to harm a child besides a parental beating.

The flip side of denying the antecedent is “affirming the consequent.” To reuse McInerny’s example, the argument goes: If Louise is running, she is moving; she is moving, therefore she is running. Again, the problem is that running is not the only way to move. The same confusion exists between one way to do something with the only way to do it.

Has anyone else run across this fallacy? Please leave me a reply or reach me at www.attorneyroberthill.com.