Battling Straw Men on Appeal

Ever had opposing counsel misrepresent your argument? This post ends a series on logical fallacies that I have faced handling South Carolina appeals. Misrepresenting an opposing argument falls in a family of fallacies known as “ignoratio elenchi,” literally meaning “ignorance of refutation.”

The fallacy occurs when a response side steps the issue. This could be a “red herring” where your opponent simply changes the subject. Or it could be a special type of distraction where opposing counsel misrepresents your point to say that you raised a similar but weaker argument. Opposing counsel then attacks the weaker argument without grappling with the issue that you actually raised.

This is the classic straw man. I faced it in a case against the South Carolina Department of Transportation. At issue whether a trial court could make a plaintiff sue previously released parties so that the defendants could apportion liability. In the trial court, my co-counsel argued that this could not be the law because, if it was, the court would have to dismiss some defendants because other defendants had good defenses.

This was a reductio ad absurdum argument in which you disprove a point by showing that the logic leads to absurd results. Unfortunately, the Department of Transportation mischaracterized the argument as saying that we asked for the dismissal. It then argued that we should lose because we invited the error.

See how it works? You create an argument that was never made on appeal, knock down the straw man that you created, and walk away without joining the true issue.

In my case, I was able to point the South Carolina Supreme Court to specific record citations showing what was going on. The Court did not find invited error, and agreed with us on the merits. The case is Chester v. South Carolina Dep’t of Transp., 388 S.C. 343, 698 S.E.2d 559 (2010).

Anyone else had their arguments misrepresented this way? Please leave a reply or reach me at





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