Argument & Persuasion
Some General Thoughts About Arguments & Persuasion
By Bill Masters
Wallace, Klor & Mann, P.C.
“At the end of reason comes persuasion.”
Argument is a lawyer’s best friend. A lawyer without an argument is, as we say, all bark and no bite, unable to protect even the most sympathetic client. Yet with it, a lawyer can hound even the most badgering adversary. Surprisingly, however, as lawyers we receive little direct advice about the bones of argument–logic and rhetoric, the twin skills of communicating persuasively. As a result, many a good idea misshapened by a poor argument ends up, as the British would say, “a dog’s dinner.” To avoid that unhappy result, I aim here to bait you lawyers (who could have the best noses for argument anywhere) with some thoughts about logic and rhetoric.
Obviously, we persuade variously. Very often we do so merely by casting light on what is right before our eyes–by imbuing what we have taken for granted with importance. As Yogi Berra once said, “You can see an awful lot just by looking.” But often we persuade in a somewhat more complicated way–with arguments. An argument is what we use (other than sticks and stones) to rally consensus about a target belief. [See C. Perelman, The Realm of Rhetoric.] To persuade the jury, for example, we argue that our client was not negligent in allowing her dog to run through her neighbor’s flower garden because lightning snapped its leash. This is an argument to an act of God. That is, our client cannot be responsible for that beyond her control.
Of course, in fashioning an argument, we must be mindful of the inherent limits of our enterprise. Simply, we should recognize that consensus is a matter of degree. At one extreme, for instance, most would readily agree that mathematical proofs result, through deduction, in valid conclusions. At the other extreme, for instance, most disagree about arguments in the arts designed to canonize aesthetic values. These arguments generate hot, dogged debates because they depend on complex emotions, created from highly varied interactions of nature and nurture. [See W.B. Gallie, Essentially Contested Concepts.] The point is, on some topics some people cannot be persuaded in the short term to change their beliefs. So if we expect much from argument at this end of the spectrum, we will be barking up the wrong tree.
Between these extremes is the hunting ground of rhetoric, the place where partisans can argue with a hope to persuade, to win adherents, perhaps to achieve unshakable, broad consensus or convergence in beliefs. [See R. Rorty, Solidarity or Objectivity.] This is to say no more than that this ground is dynamic–receptive of movement toward consensus in the short term. But though dynamic ground, it is never neutral ground. For everyone in the audience has a bias–predisposing beliefs resulting from the interplay of conditioning and innate limitations. [See S. Fish, Rhetoric in Doing What Comes Naturally]
So to have a chance of success, an argument must be crafted either to appeal to or to avoid those biases. If you cannot pick an audience sympathetic to your theme, at least argue from premises your audience will readily accept. For example, premises your audience will likely accept are the meaning of certain basic words. If the audience can agree on those meanings, that is, on the logical structure of argument, then it can be more readily committed to certain substantive, more controversial conclusions. [See R. M. Hare, The Structure of Ethics and Morals in Essays in Ethical Theory.] As a rule, when biases or intuitions conflict, those biases or intuitions formed through the broadest consensus, such as linguistic skills, should predominate over those formed through a narrower consensus such as those resulting from various peer groups. We are always using areas of greater consensus to persuade in areas of lesser consensus.
There are obviously cases about which our biases or intuitions seem clear. To these cases, we have been socially conditioned to respond with distinct emotions. For instance, we cringe when we see a man beating a small dog. But there are always other cases about which our intuitions are fuzzy. For instance, our emotional reaction is less distinct when we see a frail woman beating a big vicious dog with a broomunless she has a tall pointed black hat; then we feel sorry for the dog. Lawyers look for these gaps in consensus–areas where there is little or no agreement as a dog looks for a hole in the fence. These gaps are occasions for argument and allow us as advocates to use rhetorical force to persuade others to our side.
The value of any particular argument is how readily it can gain and how long it can hold consensus. Many forms and kinds of argument can gain consensus. Some easily gain consensus, like the appeal to expert authority. Others must work harder to do so, like the appeal to analogy. Still others, called fallacies, may work, often too easily, but achieve only temporary gains, like the fallacy post hoc, ergo propter hoc (after this; therefore, because of this)that is, the fallacy that Y is caused by X merely because Y temporally followed X.
The Logic of Argument
The logic of argument concerns the form or structure of an argument. That structure is determined by the meanings of certain words that carry logical force–words such as “all,” “some,” “if . . . then,” “and,” “but,” “or,” and “ought.” These words channel the movement of the logical processes of inference and deduction. Inference is the form of reasoning from particular observations to general hypotheses: “P then q. Therefore, if p, then q.” Deduction is the form of reasoning from general hypotheses or norms to particular beliefs: “If p, then q. P, therefore q.”
The grist of these forms of argument in law is norms and facts. For example, the fact: A person, X, walked his dog without a leash. The norm: If a person walks his dog without a leash, that person must be fined. This distinction between facts and norms, although at times fuzzy, is usually clear. This distinction is important because it has important consequences. For instance, logically, some believe you cannot deduce norms from strictly factual premises. [See D. Hume, A Treatise of Human Nature.] If you tried to do so, you would commit the “naturalistic fallacy.” [See G.E. Moore, Principia Ethica, p. 10.] Moreover, because a fact is a belief widely shared, the more an argument focuses on facts, the more readily it will persuade. Who would dispute, for example, that in inertial reference frames, force equals mass times acceleration? The more it focuses on values or norms, the less readily it will achieve consensus. How many, for example, would agree that dogs should always be leashed?
This distinction between facts and norms is particularly important to lawyers because in the law we usually resort to arguments to precedent or principle. That is, a legal norm held to apply to a past circumstance (Cp) is argued to apply to a more recent circumstance (Cr) because Cp and Cr are relevantly similar. [See C.R. Sunstein, On Analogical Reasoning, 106 Harvard Law Review 741 (1993)] This is an argument we can state as a syllogism:
Major premise or norm: “If this circumstance, Cp, then this consequence, Y.”
Minor premise or facts: “Cr is similar to Cp”
Conclusion: “So this consequence, Y.”
Disputes can arise over several elements of this form of argument. You can disagree with the norm or major premise. For instance, you can disagree that it correctly states the norm or law; it’s not the law. You can complain it’s too abstract; it has no content. You can complain it’s too specific, it’s not a rule. You can disagree with the norm itself; it’s bad law. Or you can dispute that it’s a norm at all; it describes rather than prescribes behavior.
You can disagree with the facts or minor premise. For instance, you can disagree that the putative facts are indeed facts. Specifically, you may dispute either that the proposed fact is true or that it’s even of fact, that is, that your opponent has fallen into the “descriptive fallacy,” confusing as descriptive that which is actually evaluative. [See J.L. Austin, How To Do Things With Words, p. 3.] You can also disagree that the present facts are relevantly similar to those to which the court originally held the norm to apply.
You may also disagree about the meaning of concepts in the major or minor premises. You may disagree, for instance, about the defining or meaning criteria of a concept. This would be a dispute about meaning. You may also disagree that less generally stated circumstances fall within the more generally designated class of circumstances the concept identifies, even though you know the meaning criteria of all the terms. This would be a dispute about interpretation.
Of these problems, three often recur. First is analyzing concepts, second is generalizing empirically from particular norms and facts of precedent, and third is evaluating norms.
Arguments About Meanings. We are often perplexed about what a particular word or term means. We also often cannot determine whether a particular thing falls within the class of things described by a term in a norm or statement of fact. For instance, do Fall Snake River Chinook salmon constitute a separate “species” under the Endangered Species Act? Or, is emotional distress “bodily injury” under the insurance policy? Ideally, for ease and precision in definition, each class term would be defined by concrete defining criteria, a discrete set essential to each term. So X class term would be defined as including only those things with properties a, b, and c. And “things” would have easily identifiable “properties.” But these ideals are not always a fact about how we use language or the way things are. Indeed, in argument, many of our false trails result when we resort to such oversimplified, idealized models of language. To stay on track, we must constantly remind ourselves to “look and see whether there is anything common to all.” [See L. Wittgenstein, Philosophical Investigations ¶ 66.]
For instance, one frequent problem is what’s called “vagueness of family resemblance.” This kind of vagueness is exhibited by concepts such as “games,” “poems,” and “language.” Do these concepts have a set of essential defining criteria? In fact, they do not. Instead they have these characteristics:
(1) at least one of its “defining” properties is a disjunctive property whose components are “meaning criteria;”
(2) candidates for inclusion in its “denotation” may be arranged serially according to the number of component meaning criteria they possess; and
(3) no rule of usage specifies how many of these components must be present. [See R.G. Olson, Meaning & Argument.]
How often have you despaired after having tried to find the essential defining criteria for a concept in order to nail down an argument? You had likely fallen into the “fallacy of certainty,” the pitfall of hunting for an essence where none exists, in order to have a-death-lock-of-an-argument to free yourself from having to persuade the court, through rhetoric, that your proposed meaning was pragmatically best.
Arguments About Empirical Generalizations. Whether we deconstruct or construct an argument we must state the norm and relevant facts of precedent. That norm or those facts are not always neatly packaged with the label “applicable norm” and “relevant facts.” So, to arrive at a covering statement of the law or relevant facts that mantle those of precedent, we must exercise our inductive skills.
This is often difficult because the data or particulars of precedent may support many general hypotheses of what is the correct norm or relevant facts. The hypotheses, that is, are underdetermined. [See W.V. Quine, Word and Object.] Indeed, the data may equally support contradictory hypotheses. So only through the force of rhetoric, not mechanistic logical inference, can you hope to have your favored hypothesis accepted.
Arguments About Norms. Norms are usually critiqued on three bases:
1. First is by reference to more abstract or general norms called justifying principles. These principles justify because they command broader consensus than the norms they are recruited to justify. This process, to justify through more general principles or norms, we could term “normative ascent.”
Normative ascent has intuitive limits. It could proceed to infinite regress, or at least to a principle of no content, such as: “If some circumstance, then do something.” But usually our justifications end before this, at a point where we intuitively have no further reason to doubt. [See L. Wittgenstein, On Certainty ¶ 204.]
2. Second is on the basis of their consequences. An appeal to consequences is an appeal to particulars, the bare bones of human existence. So an appeal to consequences will likely be the centerpiece of your argument. [See Aristotle, Rhetoric, II, XXIII, 1399a.] But a word of caution: An appeal to consequences may prove too much. Considering some consequences, that is, may have undesirable consequences. The point is, not all consequences are considered: Just those on point. For instance, if you advance an interpretation of the statute to require an award of attorney fees because it will have the consequence of pleasing your partners, and pleasing your partners is your most important goal in life, that argument, while having desirable consequences, relies on irrelevant consequences. And your appeal to those irrelevant consequences constitutes a fallacy.
To deconstruct an argument by an appeal to consequences, you have at least two strategies. First, you can start from a premise which your opponent or the court believes, and from it then infer a conclusion inconsistent with a cherished belief. [See Perelman & Olbrechts-Tyteca, The New Rhetoric, pps. 205-10.] Second, you can start from asserted premises and add, as a supposition, another premise. If from all these premises an undesirable consequence of the supposed premise follows, you can then assert that the supposed premise is false. This is the dreaded reductio ad absurdum (reduced to the absurd). [See P. Geach, Reason & Argument.] With these forms of argument, you try the norm on for size, inventing compelling scenarios to disclose and emphasize latent incongruities and counter intuitions–that is, unacceptable consequences.
For example, an environmentalist argues that only those with purely conservationalist interests in endangered salmon have standing under the Endangered Species Act. To deconstruct this argument with the reductio ad absurdum, add as a supposition the premise that of those with a conservationalist interest, those also with an economic interest in the salmon do not have standing. From this set of premises is derived the intuitively undesirable conclusion or consequence that neither the Idaho tour guide with an economic interest in guiding tourists to watch the salmon leap the falls nor the wildlife photographer of salmon who sells her photographs has standing to protect the endangered salmon.
To construct an argument by an appeal to consequences, you can draw conclusions from accepted premises to reach intuitively satisfying conclusions. For example, you interpret a norm to require X. Your opponent counters arguing that norm will lead to Y, an absurd consequence, in another similar circumstance. Facing that contradiction, you rejoin with a distinction that narrows the norm to allow X but not Y. Remember the adage that when faced with a contradiction, make a distinction. [See W. James, Pragmatism, lecture two.]
3. Third is on the basis whether or not the norm was derived through a sanctioned process. For instance, you must finance the education of another because the legislature, through a duly enacted constitutionally unobjectionable statute, says so, or you must not compete with Big Business, Inc. because you agreed for consideration in an arm’s length transaction not to do so. [See J. Rawls, A Theory of Justice.] We could say here, “what counts is not whether you win or lose, but how you play the game.”
The Rhetoric of Argument
“What, you ask, does the foregoing have to do with trial advocacy?” Just thisit acts as a foil to highlight the following: That is, argument in law is usually not about formal logic–the discovery of clear contradictions, self-refuting statements, fallacies of affirming the consequent or denying the antecedent, the errors so keenly hunted by academic logicians. It is not about linguistic intuitions, those intuitions about which there is the greatest consensus. Rather, arguments in lawespecially in trialappeal to a narrower set of intuitions–to intuitions about cases or experiences about how people live or should live, the kinds of intuitions which often differ from person to person. As Justice Holmes mused in The Common Law, “The life of the law has not been logic: it has been experience.” As Judge Richard Posner recently said, “most judges can handle facts better than they can handle theories.” [R.A. Posner, Legal Reasoning from the Top Down and From the Bottom Up, 59 Univ. Chicago L. Rev. 449 (1992)] That is, the rhetoric of argument concerns how we react emotionally and morally to certain experiences.
What influences people of all ages, intellects and personality are stories about people (or animals that seem like people). People cannot help themselves; their social instincts take over. Such stories are the stuff of rhetoric. So if you want an argument with force, let it turn not on logic but on a well structured story about a person with whom the audience can identify.
“Principles and laws may serve us well. They can help us to bring to bear on what is now in question, what is not now in question. They help us to connect one thing with another and another. But at the bar of reason, always the final appeal is to cases.” [J. Wisdom, A Feature of Wittgenstein’s Technique in Paradox and Discovery]
Ultimately, persuasion resides in the particulars of experience, the phenomenal world we know directly through our senses. These particulars of experience are selectively arranged into narratives or temporally structured arrangements of particulars, the fabric we create of what we know. Narratives or stories are intuitively appealing ways of presenting particulars and hence intuitively appealing ways of persuasion.
But simply creating a narrative is not enough. You also need a plot, organized usually around the notion of creating sympathy for your client and antipathy for your adversary. Your theme, as Professor McElhaney counsels, is not a call to insure justice prevails but a call to right an injustice. “Injustice has the power to stir people’s blood.” Certain plots have the power to express this theme, to capture the attention and direct the emotions of the audience toward the desired conclusion. Discovering these plots in the facts of each case is the essence of persuasive advocacy, finding, that is, “the same in the different.”
For plaintiff’s counsel the plot of choice is that of plaintiff as victim, someone against whom defendant has been unjust. In this scenario, plaintiff is portrayed as the hapless victim of defendant’s carelessness or greed, a state that continues post accident through trial. The jury is implored to effect a reversal of this ill fortune to alleviate an injustice or, more poignantly as plaintiff’s counsel strives to posture through innuendo, to effect a triumph of good over evil.
For defense counsel, a useful plot is that of plaintiff as clever opportunist exploiting the legal system. In this plotline, defendant is the victim as plaintiff uses her chance association with defendant as a way to manipulate the biases and indeterminacies of our imperfect legal system to exploit the defendant. The jury is implored to set things right.
Another plot defendant’s counsel finds useful is that of the self-deceived plaintiff who misattributes the cause of his physical complaints. Here defendant portrays plaintiff as perhaps innocent of mind but nonetheless mistaken, through self-deception, about defendant’s role in his alleged injury. What plaintiff cannot see is that his own psychological or emotional forces are responsible for the injury, not the defendant’s conduct.
Consider the following hypotheticals. In the first, the claimant is portrayed by her counsel as a victim. In the second, she is portrayed by defense counsel as an opportunist. All the “facts” are true, but each side of the debate selects only a subset of these facts for his or her story.
1. Plaintiff as Victim: Patricia M., age 36, is a petite, attractive brunette who has been married to Mark M. for 20 years. They have two beautiful daughters, Kim and Gina. Patricia, besides being a mother and wife, also worked as a payroll clerk with Shilo Management Corporation. Until 1987 she was very active, riding bicycles, ice-skating, swimming, and hiking. She also liked needlepoint and stitchery. She and her family enjoyed dinner out or movies once or twice a week. Since January 1987, she can do none of these activities.
Before January 1987 Patricia had the normal female physical complaints but was usually in good health. Then in January 1987, she had a bilateral mastectomy, owing to fibrocystic disease, and then bilateral silicone breast implants. Since then she has had a pain her chest, fatigue, headaches, joint and muscle pain and memory loss. These symptoms arise, plaintiff contends, from an autoimmune disease triggered by the silicone leaking from her breast implants to all parts of her body. Defendants drug company and doctor knew before Patricia received her implants but did not warn her that the silicon could irrevocably, as it has done, damage her body.
2. Plaintiff as Opportunist: Patricia M., age 36, is an anxious, mousy woman who was living with her husband, Mark M., until he left her in June because of her life-long, bizarre behavior. They have two daughters, Kim and Gina; last summer, Gina, aged 17, ran away from home because of friction with her mother. Patricia has a history of short-term, unskilled jobs and was dismissed from her last job as she had been dismissed from previous jobs for missing too much work owing to medically questionable illnesses.
Before January 1987, she had extensive medical treatment for an assortment of symptoms. Her medical records fill 10 large, 3-ring binders. Several of her physicians consider her to exhibit drug-seeking behavior and to have a factitious disorder, a psychological malady in which an individual knowingly seeks medical treatment for non-existent organic maladies without consciously knowing why.
In January 1987, she had bilateral silicone breast implants. Since then the symptoms she alleges she has from her implants are the same symptoms she has complained about having before implants. The leading objective scientists studying the issue whether silicone causes autoimmune or rheumatologic disorders have determined that such association is entirely speculative.
In sum, argument becomes important when consensus is not well formed. When that occurs, argument has the potential to form consensus, to persuade. In that context, the force of argument is not in its sterile manipulations of logic, but in its emotional content, a field not comprised of abstractions or generalities or legal rules, but in the carefully selected and narrated facts of everyday experience.