Distinguishing Cases on Appeal – 3 Fallacies

Mark Twain

Mark Twain

Mark Twain once said, “All generalizations are false, including this one.” This aphorism highlights some of the continuing fallacies that I have run across in handling South Carolina appeals. This post covers three fallacies over generalizations.

I have run across arguments where an attorney tries to extrapolate a general rule from a materially distinguishable case. In one case I have seen, for example, an insurance company is arguing on appeal that a single decision overruled — silently — almost a dozen statutory-construction cases rendered over 30 years. A fairer reading, I believe, is that the case is distinguishable.

Wrongly gleaning generalizations is a formal fallacy known as the “converse accident.” The fallacy relies on cases that are materially different and argues that the differences are only insignificant variations within the scope of the proffered rule. The brief writer wants us to believe that the same rule covers the different cases.

The converse of the “converse accident” is, well, the “accident.”  It occurs when a lawyer or others advocate a general rule without acknowledging an applicable exception. I have faced this too. In one case, opposing counsel advocated a general rule that he gleaned from an ALR. I was able to use the same ALR to show that an exception to the general rule existed and applied. The case involved the proper measure a damages for negligently destroyed trees.

Lastly, these fallacies are often accompanied by a third fallacy known as “contextomy.”  As the name suggests, this is a fancy term for taking quotes and other materials out of context. We all know that when we see it, and judges do too.

Has anyone else faced these fallacies on appeal? Please leave a reply or reach me at www.attorneyroberthill.com.







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