Facing the “You Too” Fallacy on Appeal

(Sony Pictures 1989)

(Sony Pictures 1989)

This post continues the series on fallacies that I have faced while handling South Carolina appeals. The last one discussed ad hominem or personal attacks and suggested how to deflate them. This one covers a particular type of personal attack and when it may properly work.

In the “tu quoque” attack, one charges the opposing party with  hypocrisy. The argument is “Yeah, you’re another” or “you’re one to talk.” It is fallacious because two wrongs do not make a right.

Or do they? Two wrongs may make a right, or at least cancel each other out, in equity. A fixed principle in equity within South Carolina and elsewhere is that those who seek equity must come into court with “clean hands.” Wachovia Bank v. Coffey, 389 S.C. 68, 75, 698 S.E.2d 244, 247 (Ct.App. 2010)(explaining unclean hands doctrine). Likewise, “he who seeks equity must do equity.” Regions Bank v. Wingard Properties, Inc., 394 S.C. 241, 259, 715 S.E.2d 348, 358 (Ct.App. 2011)(explaining maxim). Hypocrisy may thus defeat equitable claims if you can tie it to the claims brought against your client.

Technically, these principles apply only in equity and not in actions at law. Aaron v. Mahl, 381 S.C. 585, 594, 674 S.E.2d 482, 487 (2009)(holding that the unclean hands doctrine does not apply in an action at law). Even so, hypocrisy may legitimately arise as an issue of the plaintiff’s comparative fault or negligence.

How do you counter it? The most direct counter is denying the claim. Folks do not like hypocrites, but dislike liars at least as much. Or you can draw distinctions to argue that the charge of hypocrisy is a distraction or “red herring” — another fallacy that deserves its own post.

Has anyone else dealt with a hypocrite in an appeal? Faced false charges of hypocrisy? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.







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