Tuesday, March 12, 2013

Making a logical argument in a child custody proceeding

Tomorrow I plan to attend another seminar on effective communication, the focus of which reminds me of one of my oft cited sayings: say what you mean and mean what you say. Today though I finally complete and present, what has been three months in the making, this posting about making a logical argument which begins with another of my frequently expressed sayings.

Oh the deceptions that we weave to rationalize when we deceive.

Whether it be to self or others the use of logic is a compelling foundation to effectuate persuasion. My son, Therin, just finished the debate season this past month. The anecdotes that I hear from him reinforce the principles of argument that I espouse in my coaching with him. In the debate forum teams are assigned to affirm or negate a proposition and then must convince the judges that the assigned position is correct.

These are hot button issues in which most people will take a firm stance. One hour Therin has to be convincing that the affirmative stance is correct. In the next he may have to tear down the argument he had just made and convince the judges of the opposite – that the negative stance is correct. It could be enough to give you heartburn.

One of the major points of litigation is to make a logical argument. Law students take numerous classes that touch upon the use of logic including those such as debate which are specifically logical argument based. Even so there are some attorneys who just don't seem to get it. Likewise, there is a large portion of the general population that doesn't think logically either. It is no surprise because there are some personally types that show a preference towards feelings. Likewise there are personality types, like mine, that favour -- or are predisposed -- to using logic. Sometimes this comes at the expense of emotion. Therefore, a balanced approach must be taken.

Knowing this is important because it has an effect on communication, especially persuasive communication. No place do we seek to persuade more so than in a child custody proceeding. A court of law is a forum bound by rules, laws and persuasive argument for a supposedly objective arbitrator – the judge. Judges are humans though which gives rise to child custody paradox: How does one demonstrate through logical argument that he or she possesses the necessary emotion – nurturing skills and empathy needed to raise a child. Thus the argument one propounds must be logically supported while at the same time demonstrating the 'human element' or emotional support that children need.

If you plan to make a logical argument or your adversary tries to use them against you then you must be able to recognize and tear apart false logic strings before they harm your case. This can be deconstructing your own argument or that of your adversary. In effect you must be a debate student ready to build your case in the affirmative and then moments later convincingly tear it to smithereens.

On one of those rare occasions while I was watching television I was quickly reminded of why I don't. I already wrote about the Liberty Mutual Insurance Company commercial. It was a real hit parade because next in the line-up was Nexium.

Nexium is a drug for the treatment of heartburn. This commercial tried to use a logical argument to elicit the conclusion that you should see a doctor about having this drug possibly prescribed to you.

The commercial attempts to portray the folly of self-diagnosis for medical ailments by showing people in various forms of discomfort arising from digestive maladies. The narrator asserts that only a doctor can make an accurate diagnosis of whether the ailment is heartburn or an ulcer. The intestinal maligned man is shown throwing baseballs all over the home plate area, stands, etc. In short, performing poorly at pitching.

The comparison between trying to self-diagnose your own ailments to trying to be the pitcher in a professional baseball game is established. It is clear that trying to be your own doctor is going to place you in the position of being a buffoon as much as stepping onto a baseball field and trying to pitch in a major league game.

So are you convinced or do you recognize the logical fallacy?

No one wants the humiliation of miserably failing to perform nor the danger that may be associated with a medical misdiagnosis. This commercial illustrates that but the formula used in the comparison is not analogous. Determining whether discomfort is based upon an ulcer or heartburn is a diagnosis – analysis. Thus, in making a baseball analogy the corresponding step would not be throwing bad pitches but would be analyzing form -- diagnosing how the pitch is poorly done. Recall that the commercial is making the point of the necessity of an accurate diagnosis, not a medical procedure – performance. You may know nothing about pitching and thus would not be a good coach just as you may know nothing about the distinction of discomfort symptoms between heartburn and an ulcer.

Conversely, if the comparison is to be an untrained ordinary person taking on the task of being a professional baseball player then the accurate medical comparison would be an untrained ordinary person taking on the task of performing a medical procedure to repair the ulcerated tissue, not a diagnosis.

This is the fallacy of inconsistent variables. While the subject matter may be the same the comparison is not valid unless there is structural congruity.

Nexium is a treatment for heartburn. The makers of Nexium tell you to let the doctor do his job, you do yours. They further state that “only a doctor can determine if your persistent heartburn is something more serious”. Litigating requires making cogent argument. The makers of Nexium should stick to their job – making drugs – and let logical people make the logical analogies. But they don't and they are convincing at establishing the validity of their foray into the field of logic although inept at doing so but that is likely not seen. They underscore their argument with an emotional connection that obscures their logical fallacy.

Just as Therin does at debate competitions, to be most effective at presenting your case you must make a logical argument that can be cemented in the mind of the judge. Don't short-change your children or yourself by making arguments in court that are seen as illogical . Marshal the necessary evidence, logically apply it to the dynamics of your case and when making an analogy for illustrative purposes be sure it is congruent if you can.

Your judge was an attorney and trained as such. Your judge is a person and most likely a parent. Presenting cogent argument without being devoid of balanced emotion is essential to effectively demonstrating your case and your child's need to have you as a parent consistently providing care and support.

All is not lost if you can't do that though. Nexium does it and they, by far, are not the only ones. If you can't make an argument that is consistent with the facts then create a false analogy and give it emotional glue. Make your doubters feel like buffoons if they challenge you.

In closing, whilst on the subject of deception, I assure you that I will soon get back to the subject on Child Advocates, Inc., once opportunity avails itself to me again.

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