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: Effective Advocacy and Refutation

It’s one thing to read about how to argue and quite another thing to do it. Just as you can’t learn to tango without hitting the dance floor, you can’t hone your argumentation skills without engaging in some verbal scrimmages. Although we cannot provide you with practice, we can offer guidance on how to advance an effective, well-reasoned case, and, in turn, on how to refute an opponent’s case. Before we get to the details, it’s important to understand your responsibilities in a dispute. In the same way that people dancing the tango mustn’t step on each other’s feet, effective arguers must understand and follow their obligations in an argument.

Sorry to Burden You: Argumentative Obligations and Responsibilities

Burden of Proof and Presumption: I Demand Proof

If a friend claimed “Bigfoot is real,” you’d most likely expect your friend to provide proof for the claim. In argumentation parlance, this standard is known as the burden of proof, which centers on who has an obligation to prove something and to what degree of certainty he or she must prove it. In this example, what would constitute sufficient proof that Bigfoot exists? If your buddy provided some eyewitness accounts and a fuzzy photo, would that suffice? What about a highway sign warning of Bigfoot crossings? (Figure 12.1.) How about an article in the prestigious journal Nature, announcing the discovery of a new human-like species, based on DNA evidence from hair fibers?

On the flip side of the coin, the concept of presumption suggests that an existing position is assumed to have merit and deserves preference until a better one comes along. That is, presumption favors the status quo or the existing order. In the example above, because your friend is advancing the claim, you would typically enjoy presumption or what has also been called “the preoccupation of argumentative ground” (Whately, 1963; Godden & Walton, 2007). As we’ll see in a moment, however, the matter of who shoulders the burden of proof and who enjoys presumption is not always cut and dried. In some contexts, argumentative burdens are officially assigned, while in others, people themselves must argue about who must prove or disprove something and what constitutes sufficient proof. It is important to clarify these issues at the very outset. Otherwise, you might find yourself shouldering someone else’s burden in an argument.




Figure 12.1 Bigfoot crossing sign. Shutterstock image: ID: 613014212. Rudy

Burdens in Everyday Arguments: I Want Proof Positive

In ordinary informal arguments, no one is officially assigned the burden of proof or presumption. Nevertheless, an audience may have a psychological expectation of what the arguer’s burden should be (Sproule, 1976). What’s more, argumentation scholars agree that a basic social norm in everyday arguments is that the person advancing a claim is obliged to support that claim (Godden & Walton, 2007; Walton, 1988; van Eemeren & Grootendorst, 2004). For instance, if your close friend Olga said “I hate to be the one to tell you, but Chris is cheating on you,” it would be reasonable to expect her to offer some form of proof. If Olga went on to say, “I saw Chris making out with that food server who works at the vegan restaurant,” her eyewitness testimony might establish that Chris was a two-timer.

Prima Facie Case: The Opening Salvo

An advocate satisfies his or her initial burden of proof by presenting a prima facie case. Prima facie is Latin for “on its face” or “at first glance” and simply refers to an argument that stands on its own, absent any refutation. Generally speaking, an arguer who supports a claim with “good and sufficient reasons” has satisfied the initial burden of proof. Offering a prima facie case, however, doesn’t end a discussion. It begins one. A prima facie case is one that is strong enough to merit a reply.

Legal Burdens: Reasonable Doubt

If you’re familiar with the phrases “beyond a reasonable doubt” or “presumption of innocence,” you already know something about the burden of proof and presumption in legal contexts. In a criminal trial in the U.S., the prosecution has the burden of proof. Specifically, the prosecution must demonstrate a defendant’s guilt beyond a reasonable doubt. The defendant, on the other hand, enjoys a presumption of innocence. The defendant is presumed to be innocent until proven guilty. In other legal contexts, the burden of proof varies (see Box 12.1). For example, in a civil suit, the default standard is the preponderance of evidence. If the weight of the evidence favors the plaintiff, the plaintiff wins. If the weight of the evidence tilts toward the defendant’s side, the defendant wins.

Box I 2.1 Legal Standards of Proof

Beyond a reasonable doubt:The prosecution must prove its case so convincingly that a reasonable person would not question a defendant’s guilt.

Criminal trials

Fraud, wills, patent infringement, terminating life support, insanity pleas

Arrest warrants, search and seizure cases, grand jury proceedings

Civil suits, small claims court, child support cases

Traffic stops or brief detentions, frisking and pat downs, school searches such as lockers and backpacks

Clear and convincing case:A plaintiff in a civil suit must provide evidence that is highly and substantially more likely to be true than false.

Probable cause: Law enforcement must show there are facts and circumstances that would lead a reasonable person to believe a crime has been committed.

Preponderance of evidence: A plaintiff must demonstrate that the balance of probabilities favors his/her side. If the plaintiff’s case is more likely than not, the plaintiff prevails.

Reasonable suspicion: Law enforcement has the burden of proof, which requires a specific, identifiable rationale. A hunch or gut instinct does not suffice.

Burdens in Non-Legal Contexts: Stands to Reason

Outside the courtroom, other burdens of proof are in effect. In a case that is tried in the “court of public opinion,” for example, there are no due process guarantees. Of course, journalists are supposed to fact-check claims, corroborate evidence, and rely on multiple independent sources, but bloggers, tweeters, and other media outlets are free to say or write whatever they choose, short of committing libel and slander.

In another context, NFL football, fans can scream their heads off over a referee’s call, but the National Football League requires “incontrovertible visual evidence” for instant replay footage to overturn the call on the field. In other words, presumption lies with the initial ruling made on the field.

In social science research, results are said to be significant if they meet the p < .05 level of statistical significance. This entails a statistical burden of proof requiring researchers to be 95 percent confident that their findings are not due to chance before claiming to have found a significant result. A 5 percent margin of error is allowed. The presumption is that no claim of a relationship between variables can be made unless it can be demonstrated with 95 percent or greater confidence.

Shifting Burdens: I’ve Got Nothing to Prove

Although people advancing a claim are often expected to assume the burden of proof, there are cases where the burden might be shifted the other way round. A boss, for instance, may tell a subordinate, “Boswell, we’re downsizing! Give me one good reason why I shouldn’t fire you.” The boss has shifted the burden of proof to Boswell, but the employee would be well-advised to come up with two or three reasons why he is essential to the company’s operation.

As another example, not all nations adhere to the doctrine of presumed innocence. In many places across the globe, a prisoner is presumed guilty and subject to incarceration until proven innocent at trial. Of course, it is tough to prove one’s innocence while behind bars. At present, roughly 3.3 million people are being held in detention worldwide (Open Societies Foundation, 2014, p. 1). Many are innocent and are eventually acquitted at trial (Open Societies Foundation, 2014, p. 11). Many others languish in jail for years before getting their day in court.

The burden of proof may also depend on the urgency of the situation. In an emergency room, for example, there might not be time to argue. Instead, quick, decisive action might be needed to save a patient’s life. The same might apply in a disaster, where quick thinking rather than slow deliberation is required.

Misplaced Burdens: Prove Me Wrong

Sometimes arguers try to shirk their burden of proof. Suppose your neighbor, Vlad, said “Your dog dug up my roses.” When you ask “How do you know?” Vlad replies, “Gut instinct.” In this case, you might reasonably question whether a mere hunch was sufficient to support the allegation. But what if, instead, Vlad replies, “How do you know your mutt didn’t dig up my roses?” Notice that he is attempting to reverse the burden of proof by asserting that you must prove his argument false. This particular fallacy, which was discussed in Chapter 9, is known as an appeal to ignorance (or, in Latin, argumentunt ad ignorantium). Specifically, by asserting that something is true because it hasn’t been proven false, Vlad is evading his burden of proof. If you’re like most people, you have a fairly good sense of when someone has shifted the burden of proof illicitly (Ricco, 2011). In this case, you’d have every right to tell Vlad, “You’re the one making the accusation. I’m willing to make amends, but I’m going to need to see some proof first.”

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