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Commentary: Raising the Bar - Spotting the fallacious argument

Daily Record, The (Baltimore), Aug 29, 2003 by Special to The Daily Record

The following is an excerpt from chapter four of The Winning Argument, a book published by the ABA Section of Litigation and co- authored by Paul Mark Sandler, Ronald Waicukauski and JoAnne Epps. This week continues a discussion of logical fallacies often encountered in legal arguments.

Mistakes of reasoning can undermine an advocate's entire case, no matter how sound its other parts may be. It may be helpful to give all arguments a stringent 'logic test' before going public with them.

Slippery slope

The slippery slope argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow.

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Gun control opponents argue against limits on the sale of automatic assault weapons because confiscation of sportsmen's shotguns will soon follow. Bureaucrats defend their unbending enforcement of a regulation, even in circumstances that are patently unfair, because allowing an exception would open the floodgates.

These types of arguments are fallacious because they falsely describe the slope as slippery when the reality is more like a staircase with many safe stopping places along the way. In the gun control example, the government could prohibit some types of particularly dangerous weapons without taking the further step of outlawing shotguns. Bureaucrats facing enforcement regulations could create a narrow exception to a rule when warranted without affecting all other situations.

On the other hand, sometimes the slope is truly slippery, and acceptance of a particular position can lead to a catastrophic chain of events. In such situations, the slippery slope argument is a legitimate basis of argument.

Compound questions

The compound question fallacy occurs when an argument is phrased as a single question seeking a single answer, but actually involves two or more issues that cannot be answered accurately with a single response.

The classic example is the question Have you stopped beating your wife? The first issue is whether you have ever beaten your wife, the second, whether you have stopped. The question cannot be correctly answered with a simple yes or no if you never previously beat your wife. Usually, your best response to such a question is to point out that the questioner has made a false or unwarranted assumption.

Consider the question Are you still sexually harassing the staff? An appropriate response would be: The question presumes that I have sexually harassed the staff in the past. That is a false presumption. Since your question is based on a false presumption, it cannot be correctly answered as phrased.

Do not confuse the compound question fallacy with the evidentiary objection for compound questions. For evidentiary purposes, any question that asks several things at once may be objectionable on grounds that it is compound. The concern of the objection is that the question may confuse the witness or the jury. A fallacy is not necessarily involved.

False dilemma

Closely related to the compound question fallacy is the fallacy of the false dilemma or false dichotomy. The compound question wrongly suggests that there is only a single answer to a question that poses more than one issue. The false dilemma wrongly suggests that there are only two alternatives when there are actually many.

It may be argued that a witness is either telling the truth or lying, and that because what he said was proved to be false, he must have lied. On the other hand, lying - the intentional telling of a falsehood - may not be the only alternative to telling the truth. A witness may have unintentionally uttered a falsehood due to poor memory, confusion, miscommunication, or the like. Situations are often more complex than the either/or premise an advocate may use to try to box in an opponent.

On the other hand, there are times when there are only two choices, neither of which is desirable. It may be that the defendant was either driving too fast to react or, if driving slower, was not paying proper attention. Such circumstances can provide the basis for a powerful argument. Make sure that these are the only choices. If you seek to place your opponent on the horns of a dilemma, you may find yourself impaled by your own argument when a third reasonable alternative is discovered.

Composition and division

The fallacy of composition assumes that what is true of the separate parts is necessarily true of the collective whole.

If you employ three excellent lawyers to defend a case, you may wrongly assume that they will be an excellent legal team. They may not be a great team if they have conflicting views of the case or conflicting styles, or if they all want to be in charge. Instead of a dream team, you may have a nightmare.

Alternatively, a collective whole may be more than the sum of its parts. A group of basketball players with only average talent may, with good coaching and unselfish play, become an excellent team. It is logically unsound to infer that what is true of the parts must be true of the whole.

Commentary: Raising the Bar - Spotting the fallacious argument

Daily Record, The (Baltimore), Aug 29, 2003 by Special to The Daily Record

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