Trial Magazine

How are jurors distracted and misdirected at trial? Why are verdicts based on tangential or irrelevant evidence and illogical arguments? One reason lies in the application of logical fallacies.

A logical fallacy is any error in reasoning that, while sounding plausible or even compelling, is not based on logic and therefore is invalid.¹ Logical fallacies present tempting shortcuts to reaching a verdict. It is crucial that trial lawyers learn to identify an opponent’s logical fallacy, respond directly to it, and take care not to reemphasize the fallacy in the response. We must keep in mind that “there is a mighty big difference between good, sound reasons and reasons that sound good.”²

Since the time of Aristotle, hundreds of logical fallacies have been identified.³ Our children appeal to us with logical fallacies. For example: “All the kids in my class can stay up later than I can!” Politicians also use logical fallacies to try to persuade: “If my opponent gets his way, we will have stricter gun laws and no one will be able to buy a gun. What’s next? Confiscating all guns?”

While on their face, logical fallacies may appear to be plausible or even compelling, in court, you need to think clearly and critically about the evidence and expose and debunk them. Here are 10 common logical fallacies or mistakes of reasoning to watch for.

1  Whataboutism⁴

This fallacy ignores the question and switches the subject to ­something else—while accusing the opposing party of as great or greater offense. Whether it is used in ­cross or closing argument, don’t get distracted. Here are two examples of how to redirect a witness who uses whataboutism in cross-examination:

Q: “Doctor, isn’t it true that there is no more treatment for Mary’s stage IV cancer?”
A: “Well, there was no way we could have made the diagnosis at the time.”
Q: “We’ll get to the issue of your failure to diagnose the cancer shortly. My question was, ‘There is no more treatment for Mary.’ Do you agree?”

Q: “You were speeding when you crashed into Jane’s SUV, weren’t you?”
A: “She told the officer and me that she wasn’t hurt!”
Q: “But that’s not what I asked you, is it? The jury will hear from the doctors about her injuries. My question was, ‘You were speeding, weren’t you?’”

2  Ad Hominem

This fallacy involves a personal attack on an opponent. If a defense attorney attacks you, expose it in rebuttal.

For example, say: “Opposing counsel in her closing argument mentioned my name 17 times. But this case is not about me. She ignored the real issue in the case—the recklessness of her client in causing this tragedy.” Or note that opposing counsel has focused on the lawyers in the case because he doesn’t have any evidence that helps his client.

3  The Straw Man

This logical fallacy occurs when an issue is oversimplified or misrepresented to make it easier to attack. Rather than confronting the real issues in the case, a defense lawyer may set up a “straw man”—a construct that was not presented by the plaintiff that can be easily knocked down or refuted. This needs to be identified, exposed, and debunked.

For example, if defense counsel shows a video of your client bicycling with his children as evidence that he is uninjured, say: “But we never said that the plaintiff couldn’t ride a bike! The problem from his traumatic brain injury is not about bicycling, but rather his inability to return to his profession as an accountant.”

Or if defense counsel focuses on the six-month gap that your client went without treatment before she had spinal surgery to suggest that she wasn’t in pain, remind jurors of the additional case facts—the plaintiff changed jobs at that time and her new health insurance wasn’t in place, so she suffered for six months before she could see a doctor. Then get back to what the case is really about.

4  False Equivalency

This fallacy rests on the superficially appealing argument that when two sides are at opposite positions, the middle ground or “splitting the difference” therefore must be fair and reasonable. This fallacy may be brought up when the defense is arguing liability or damages.

A liability example is when defense counsel argues that both drivers in a crash case had an opportunity to avoid the crash and so each can be found 50% at fault. Your response may be that this ignores the fact that the defendant driver had 10 seconds and 700 feet to stop his vehicle while the plaintiff had just a second. Splitting the difference might be appealing, but it ignores the evidence.

This fallacy also may be used when the defense is arguing damages. For example, defense counsel may tell jurors: “The plaintiff’s attorney has argued for a damages award of $500,000. We believe that $100,000 is generous. You may conclude that $250,000 is more reasonable.”

This argument is based on the assumption that a compromised number is fair and reasonable. Counter it by explaining that your expert has testified the plaintiff will need $500,000 for his minimal life care plan, and the defense has not provided any evidence to refute that. Explain to jurors that the defense has thrown out a lower number hoping they will split the difference—but that would be half justice for the plaintiff and his family because they would only receive half of the restitution for their losses.

5  The Texas ­Sharpshooter (Clustering Illusion)

This cleverly named logical fallacy is based on a shooter who fires away at the side of a barn and then paints a bullseye around the cluster of the most bullet holes, ignoring those that fall outside the target area. In court, this occurs when a party focuses only on the evidence that supports their position, ignoring all the contradictory evidence. Identify, expose, and confront this fallacy.

Your expert can help identify when the defense expert has cherry-picked the data and only talked about the results that support the defense’s theory. Have your expert testify as to how, having seen all of the data, it’s clear that the defense expert’s opinion is based on incomplete and biased information.

Your cross-examination of a defense physician expert relying on this fallacy may look something like this:

Q: “Now doctor, as a scientist you want to know all the available information?”
A: “That’s correct.”
Q: “It is unfair and dishonest if a physician hired by a defendant only reports the physical findings that support the defendant?”
A: “I agree.”
Q: “Let’s review all the findings in this case, including those that don’t support the defense arguments.”

6  The Bandwagon Fallacy

As its name implies, this logical fallacy occurs when an argument is made that something must be correct because so many people agree with it. This should be exposed by pointing to historical references when the majority of thinkers were incorrect—for example, most people believed that cigarettes were harmless or that the Earth was flat. Explain that we all know better now, just as in your case.

Remind jurors of their oath to decide the case on the evidence that was given to them within the four walls of the ­courtroom. For example, in an ­automobile defect case, you could note that those who were not in this ­courtroom during the trial may believe that an automobile model is safe because there are so many of them on the road. But remind jurors that they know better—they have seen evidence of the defects that make this car uncrashworthy.

7  Appeal to Authority

This is based on the fallacy that if something is supported by an important person, it must be true. An example is the advertising slogan: “More doctors smoke Camels than any other cigarette.”⁵ This fallacy occurs in the courtroom when a party argues that something must be true because an authoritative expert says so. Undermine this by showing that the otherwise authoritative expert is either biased or lacks sufficient data and facts for the opinion. Here are two examples:

“We can all agree that Professor Jackson is an authority in the field of obstetrics. However, when the defense asked him for his opinion in this case, they failed to give him Mrs. Smith’s prenatal records that show a C-section would be the safest way to deliver her baby.”

“Yes, the defense metallurgist has a great resume, but you also must consider that he receives royalties on the sales of each one of the defective ball bearings.”

8  Circular Reasoning

This logical fallacy occurs when an attorney restates the argument as both a premise and a conclusion. For example, a defense attorney may argue: “Our truck driver wasn’t speeding. He is a safe driver and he told everyone he was going the speed limit!” This fallacy needs to be held up to the bright light of logic. Just because defense counsel says his client is a safe driver doesn’t make it so. The driver may have told the police and his dispatcher that he wasn’t speeding, but the black box recording shows that he was travelling 20 miles over the speed limit when he crashed into the plaintiff’s car.

Similarly, in a product defect case, a manufacturer may scoff at a suggested safety modification arguing that customers won’t want it, regulatory agencies may not approve it, or injury rates don’t warrant the change. But on cross-examination, company engineers may admit that none of these excuses has been investigated or researched. They simply announce it as fact. Assuming is not evidence.

9  The Slippery Slope Fallacy

This argument occurs when the speaker does not address the facts in the case but instead suggests that a verdict for the plaintiff would result in more cases, more losses, and problems for the community. The defense may say: “A verdict against this company means they shut down and lay off hundreds of employees!” Often this is an objectionable argument under Federal Rules of Evidence 402 or 403.

If not excluded by the court, then expose this logical fallacy by reminding the jurors of their oath to decide the case based solely on the evidence and the law presented in the courtroom. Note that even if a large verdict against the defendant hospital may result in budget cutbacks, it is wrong to even consider that in reaching the verdict.

10  Moving the Goal Post

This occurs in the courtroom when a defendant argues that the plaintiff’s burden of proof is greater than what the law demands. It is best refuted by reminding jurors of their oath and the jury instructions from the court. For example, in a trucking crash case, defense counsel may suggest that the defendant never intended to crash his truck into the plaintiff’s car. Remind jurors that the case is not about intent. If the defendant intended this tragedy, this would be a criminal case. However, this is a civil case for restitution and the plaintiff need only prove that the defendant was acting unreasonably in driving a truck with faulty brakes and bald tires.

Jurors want to do the right thing, but they need our guidance to differentiate between “good, sound reasons” and “reasons that sound good.” Your job is to help them think clearly and critically about the defendant’s claims, and then expose and lay bare the logical fallacies that underpin them.

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Robert Spohrer and Roger Dodd are partners at Spohrer Dodd in Jacksonville, Fla. They can be reached at rspohrer@sdlitigation.com and rdodd@sdlitigation.com.

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Notes

1. For more on this type of fuzzy reasoning, see Letter From Thomas Jefferson to David Harding, in The Thomas Jefferson Papers at the Library of Congress, (Apr. 20, 1824), https://www.loc.gov/item/mtjbib024995; Robert B. Cialdini, Influence: The Psychology of Persuasion (7 Harper Business 2006).
2. Burton Hillis, quoted in Laurence J. Peter, Peter’s Quotations: Ideas for Our Time 425 (1977).
3. See Stanford Encyclopedia of Philosophy, Fallacies (Apr. 2, 2020), https://plato.stanford.edu/entries/fallacies/.
4. Merriam-Webster, What About Whataboutism?, https://www.merriam-webster.com/words-at-play/whataboutism-origin-meaning.
5. Martha N. Gardner & Allan M. Brandt, ‘The Doctors’ Choice Is America’s Choice’: The Physician in U.S. Cigarette Advertisements, 1930–1953, 96 Am. J. Pub. Health 222 fig. 4 (Feb. 2006).