Archived from groups: rec.games.frp.dnd (
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Bradd wrote:
>> The simple argument quoted above has two lines of attack: one against
>> the argument ["You are wrong"], one against the interlocuter ["You
>> are a moron"]. The second line is ad hominem fallacy, and therefore
>> adds nothing to the argument overall.
Mart van de Wege wrote:
> I'm sorry Bradd, but this *is* wrong.
>
> What you are doing is stretching the 'ad hominem' definition so far
> that it can be applied to any and all personal attacks ....
No, only to personal attacks that assault the interlocutor's credibility
(honesty, competence, etc). Furthermore, the American legal profession
-- a large group of experts on this subject -- appears to agree with me,
according to the sources quoted below.
The San Diego chapter of the Association of Business Trial Lawyers
offers this guideline regarding personal attacks:
A lawyer should avoid personal attacks on all court officers,
including judges and opposing counsel, and should not comment
adversely on the intelligence, integrity, motive or conduct of
judges or opposing counsel, except in the rare circumstance when
such matter is legitimately in issue. Even when the zealous
representation of a client may necessitate allegations of improper
conduct, a lawyer should review such allegations to ensure that they
are justified and supported by the evidence. A lawyer should bear in
mind that ad hominem comments frequently are unpersuasive, increase
the level of personal antagonism, and tend to diminish public
respect for lawyers and the courts.[1]
In short, "ad hominem comments" are only appropriate when they are both
relevant and supportable. The rationale is consistent with my claims
that attacks on the interlocutor have little value but to distract
participants. Judge Loren McMaster offers a similar remark: "Avoid ad
hominem attacks. Do not personally attack opposing counsel. It is
extremely distracting to the court to have open warfare going on between
counsel. It certainly is not helpful to the Court in deciding the
matter."[2] Again, it distracts from the real issues.
That's the very definition of a red herring fallacy, and ad hominem
fallacy is simply a red herring in the form of a personal attack.
Finally, this is more than just a matter of etiquette and ethical
guidelines. Some courts and bar associations levy harsh penalties
against attorneys who make personal attacks "in addition to" their main
arguments. For example:
Another area of interest in this review of ethics professionalism is
when attorneys engage in the assertion of baseless claims,
groundless accusations, and name-calling. In Nachbaur v. American
Transit Insurance Co., a Queens attorney was sanctioned $5,000 for
disparaging remarks made about his adversary in a letter to the
court, plus an additional $5,000 plus attorneys fees for filing a
frivolous appeal.[3]
In this case, you could argue that there was no argument in the first
place, but the source goes on to explain that any personal attack can be
grounds for sanctions:
Calling the judge and opposing attorneys names or making unfounded,
irrelevant, or inappropriate remarks about them seems to be
sanctionable or worthy of discipline in many instances. In the
ordinary litigated matter, the court and counsel are not involved
except in their professional capacities, and irrelevant personal or
ad hominem attacks on them merely distract from the merits of the
litigation. Thus, where an attorney told a judge, you are corrupt
and you stink, he was sanctioned. Another attorney in New York was
disciplined for speculating that opposing counsel was involved in
organized crime.
This paragraph also explains why it's ad hominem: The interlocutor's
personal traits are not relevant to the argument, and personal attacks
generally distract from the merits of the litigation (facts and
reasoning). In this example, mere speculation was sufficient to warrant
disciplinary action.
[1]
http://www.abtlsandiego.com/guidelines.html
[2]
http://www.sacbar.org/members/saclawyer/mar_apr2005/law_motion.html
[3]
http://www.nixonpeabody.com/publications_detail3.asp?ID=303
--
Bradd W. Szonye
http://www.szonye.com/bradd
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