Study unit 1

Study unit 1
DO YOU HAVE A QUESTION?
Study time
You need 45 hours in order to complete this study unit.

Learning outcomes
After completion of this study unit you should be able to:
• display an integrated knowledge of and the ability to effectively and correctly
use an extensive vocabulary in English as appropriate to application within the
legal profession;
• clearly and logically communicate in writing about and/or critically argue a legal
issue, question or problem in accordance with the Law Faculty’s style
requirements and in an accurate, effective and coherent manner, with
understanding of the rules on plagiarism;
• operate as part of a group and make appropriate contributions through the use
of multiple legal and language skills to successfully complete writing and other
communication tasks and projects, taking co-responsibility for the mastering of
language skills and realisation of collective objectives; and
• monitor and reflect on own learning progress, acquisition of different language
skills and use of relevant learning strategies and reading to improve the ability
to communicate orally and in writing and to lay the foundation for the practice
of law and lifelong application and development of language skills.

Study Material
You will need to work through the following study material to successfully
complete the study unit:

• You will also encounter links in the content of this study unit (at the applicable
sections) that you will need to access.
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1.1 I have a question

The power to question is the basis of all human progress – Indira Ghandhi
Ask the right questions and the answers will reveal themselves – Oprah Winfrey
Knowing answers will help you in school; knowing how to question will help you in life – Warren Berger

Jurists ask questions. It is one of their main functions, objectives and aims. A jurist who
does not ask question, is not a jurist. However, asking the right question to the right
person at the right time in the right environment is a skill. It is also important to know
your audience and be sure about your intentions with the questions that you are going
to ask.
Two categories that need to be considered in terms of questions namely types of
questions and the purpose of questions.

1.1.1 Types of questions

Navigate to the link provided below:
https://www.mocktrialstrategies.com/direct-examination-2/1 and complete the activity
below.

Individual activity
Reading Comprehension, Writing, and Speaking:
1. What is the objective of direct examination?
2. Choose three aspects of “What to know before drafting a direct examination”
that you deem as being most important. Give a reason for each of your chosen
options.
3. List the eight criteria you should consider in terms of “substance and technique”.
4. List the eight criteria you should consider in terms of “performance and style”.

Below are the main types of questions:

• Open-ended questions (to obtain facts and information): Open-ended question
refers to a question that calls for a response using the subject's own knowledge
and/or feelings, in contrast to a close-ended question, which can be answered by
a simple yes or no, or specific piece of information. Example-"How are you?" is
open-ended vs. "Are you okay?".2
• Closed-ended questions (to confirm facts and information): A “closed ended
question” may be defined as a question that provides “set responses.” The most
common type of closed-ended question is a question that can be answered with
a simple “yes” or “no.” Courts also refer to this as a question that can be answered
with an affirmative or negative answer.3
• Tag question: In the legal jurisdiction, lawyers or prosecutors use tag questions
in their leading questions. We use tag question in confirming whether something
is true or otherwise. We also use it to encourage a reply from our interlocutor. For

1 Mock Trial Strategies 2010 https://www.mocktrialstrategies.com/direct-examination-2/

2 USLegal 2022 https://definitions.uslegal.com
3 NAAG 2021 https://www.naag.org/attorney-general-journal/is-a-closed-ended-question-inherently-a-leading/
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example: They are not here, are they?; The candidates passed the
examination, didn’t they?; She is tired, isn’t she?4
• Funnel question: Funnel questioning involves an intentional sequence of inquiry
that typically consists of a long line of closed-ended questions, which, when
answered, can allow for more open-ended questions later on. The funnel
questioning technique is useful in gathering very specific information about the
past (using closed-ended questions), which allows for a clear establishment of
facts about a situation, or scene-setting. Once the facts have become clear, the
interviewer can then begin to ask effective open-ended question that enable more
exploration of opinions or issues.5
• Leading question: A type of questioning in that the form of the question suggests
the answer. In general, leading questions are not allowed during the direct
examination of a witness, however, they are allowed on the cross-examination of
a witness.6
Group Activity
In groups, consider the following two scenarios and see if you can identify the
types of questions used:

Scenario 1:
Tell us what happened when you left the building.
I got into my car.
And then?
I was about to drive off when I heard a gunshot.
So, were you still sitting in your car when you heard the shot?
Yes?
How many gunshots did you hear?
One.
For which direction did the shot come?
From behind me, in the direction of the other end of the carpark.
What did you do then?
I jumped out of the car to try and see what was happening.
And what did you see?
I saw a man running away.
What do mean by running away?
He was running towards the stairs that lead to the next level.
Can you describe the man?
He was average height, wore dark clothing.
What clothes did he wear?
A blue jean and a dark jacket and a hoodie.
Could you see his face?
No.
Was there anything else about him that you noticed?
He was limping.

4 Akademia 2009 https://akademia.com.ng/what-is-question-tag/

5 One Legal 2016 https://www.onelegal.com/blog/
6 Cornell Law School 2022 https://www.law.cornell.edu
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Scenario 2:
You loved your wife, didn’t you?
I did.
For how long were you married?
Twelve years.
And you have two sons?
Yes.
Do you love your children?
Very much.
And you only want the best for them, don’t you?
Absolutely.
Even if it means that you have to make sacrifices?
Yes, yes, definitely. I will die for them.
How did you wife feel about the children?
I guess she loves them, but at times it seemed as if she didn’t care about them.
Why do you say this?
Often when I came home, she was asleep and they were on their own, even from
when they were young. They would be hungry and crying and she would just go on
sleeping. Often, when she was angry, or drunk she would scream at them and even
tell them she wished they had never been born. It was awful.

1.1.2 Purpose of questions

In the table below you will the reasons why we ask the questions that we do. We ask
certain questions in order to achieve a very specific purpose. It is important as a legal
practitioner, that you understand why you need to ask particular questions when you
prepare for either direct or cross-examination.

Gather information or
How do you know the victim?
knowledge:
What do you mean when you say the issue with the hydraulic lift was
Clarification (concept obvious?
clarification): You refer to the checks and balances that are in place; Can you give
me an example of one?
Obtain an explanation: Why do you refer to the Defendant as "Mr know-it-all"?
Enhance a vision
Do you like being successful?
(rhetorical):
The Plaintiff was adamant that he had no knowledge of the
Encourage thought: malfunctioning of the rotor blades; How accurate do you think this
statement is?
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The report seems to indicate that management acted in an aggressive

Enable reflective thinking:
manner towards employees; Why do you think this was the case?
So, if I understand you correctly, adequate safety measurements were
Get confirmation:
not in place?
Probe (assumptions): Why did you assume that the Plaintiff would stop in time?
Why did you not move across to the left lane when you had the
Probe (reasons):
opportunity?
You testified that you knew for certain that Mr Khumalo had not drafted
Probe (evidence):
the report. What makes you so sure about this?
Probe (consequences and What would have happened if management did adjust the working
implications): hours?
You never planned to tell the Defendant about the fault on the pipeline,
Intimidate:
did you?
Attack (person): This is not the first time you have been charged with neglect, is it?
Is it not possible that you could have done more to ensure the safety of
Attack (position):
employees?
I want you to think carefully about that specific day. What happened
Recall and process:
immediately after you heard the first gunshot?
Elicit emotion: How did this make you feel?

Individual activity
Navigate to the link provided below:

https://www.youtube.com/watch?v=8MAhVZBimM0

Watch the clip “When kids kill” from Law and Order SVU, and then identify at
least one example of the following types of questions and explain, in context,
the purpose of each question being asked:

Closed question
Open question
Question to clarify
Question to determine confirmation
Question to gain knowledge
Recall and process question
Emotional question
Concept clarification question
Probing question
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1.2 Cross-examination
Individual activity

Research on cross-examination:
Do some research. Find out exactly what the purpose of cross-examination is and
how effective cross-examination should be conducted and how to apply it practically.
One day when you work as a legal professional you will have to be able to fully grasp
and apply this very important form of questioning.

Consider: Cross examination at disciplinary hearings7

Cross examination is used universally in courts and tribunals and gives an accused
the opportunity to challenge his/her accusers. However, it is contentious as to whether
an accused employee at a disciplinary hearing has the right to cross examine
evidence brought against him/her. Before examining this question, it is necessary to
look at what is meant by the concept of ‘cross examination’.

When a person is accused of something in a court of law, at a tribunal or other forum

the accused person is entitled to understand the allegations against him/her/it before
the verdict is decided and put forward a defence in response to the charges. One
aspect of the accused’s right to respond is the right to question the evidence led
against him/her/it.

The normal format for this is as follows: The party bringing the allegations presents
evidence in support of the charges. Once a witness has completed his/her evidence
the accused person is entitled to challenge what the witness has said. This step of
asking questions of an opposing witness and challenging the evidence brought is
called ‘cross examination’.

The fundamental right to cross examine is, as a matter of course, given to all accused
persons in our criminal and civil courts at arbitration hearings at the CCMA and
bargaining councils as well as at the Labour Court and Labour Appeal Court. This
right is so integral to the accused’s right of defence that very few limitations may be
placed on it. That is, the presiding officer is not entitled to refuse the accused the right
to cross examine. Nor is he/she normally entitled to cut short the cross examination
unless an exception is made to this rule. For example, if the accused is repeating
questions that have already been properly answered by the witness.

The cross examiner is not allowed to badger or bully the witness by pressing the
witness for the answer he/she wants or by attacking the witness unduly. The cross
examiner is also not allowed to ask questions that are irrelevant to the case. Other
than these common-sense limitations the accused’s rights to cross examine the
witness freely is sacrosanct. The person who has called the witness is normally
neither allowed to interrupt the cross examination nor to assist the witness with the
answers to the questions or other challenges put by the cross examiner.

7 Israelstam 2019 https://www.labourlawadvice.co.za/articles/cross-examination-at-disciplinary-hearings-3/

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While the above rules are very well established in the courts and other tribunals it is
still an open question as to whether these same rights of cross examination apply to
accused employees at disciplinary hearings.

In his article on “Conducting disciplinary hearings by correspondence” in

Contemporary Labour Law (May 2007, page 105) Wayne Hutchinson addresses this
issue. He states that the Code of Good Practice: Dismissal contained in Schedule 8
of the Labour Relations Act (LRA) does not confer the right to cross examine
witnesses in a disciplinary hearing. If advocate Hutchinson is inferring that this means
the employee has no right to cross examine then his view is controversial. The main
reason for this is that, for decades, it has been a very common practice at disciplinary
hearings to allow cross examination and it could be argued that this right has become
entrenched in common law.

Furthermore, it appears that presiding officers who do not allow cross examination
might be interpreting the Code of Good Practice: Dismissal too literally. Advocate
Hutchinson is right that the Code does not expressly provide for cross examination.
However, the Code does provide that the employee should be “allowed an opportunity
to state a case in response to the allegations.” In my view the accused’s right to
respond encapsulates the concomitant right to challenge the evidence brought
against him/her.

Section 35 (3) (i) of the Bill of Rights contained in the Constitution of South Africa
gives every accused person the right to “adduce and challenge evidence.” This means
that every formally accused person has the constitutional right to bring his/her own
evidence and to challenge any evidence brought against him/her. In my view, should
an accused employee not be allowed to cross examine opposing witnesses, his/her
opportunity to challenge the evidence would be seriously diluted and his/her right to
defend his/her case would be severely compromised. Having presided over countless
disciplinary hearings I have never come across an employer that has not claimed the
right to cross examine the accused employee. It would therefore be folly for the
employer to deny the same right to the employee.

Coming to the employer’s right to cross examine we need to look at the limitations
placed on this right. The employer is in control of disciplinary hearings because these
are convened at the workplace owned and managed by the employer. The employer
therefore normally claims, as an automatic right, the opportunity to question the
accused employee or his/her witnesses. And I see no problem with this in principle.
However, the key question is “Who specifically has the right to cross examine the
accused?” normally it is the person bringing the charges on the employer’s behalf.
This person is normally called the complainant, initiator or charging officer. However,
the employer could be in trouble where the chairperson, the official presiding over the
hearing, conducts the cross examination. In the case of Botha vs Mac Steel Trading
(Pty) Ltd (2007, 3 BALR 197) the disciplinary hearing chairperson vigorously cross
examined the accused employee before firing him. The arbitrator found that this
biased behaviour rendered the dismissal procedurally unfair and ordered the
employer to pay the employee compensation. This was despite the fact that the
employee had been found guilty of turning a blind eye to theft by subordinates.
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1.2.1 Contextualising cross-examination 8

In a typical disciplinary hearing, the process is as follows:

• Introduction
• Opening statement
• Narrowing of issues
• Presentation of case
• Each witness: Evidence in chief
o Cross-examination
o Re-examination
• Closing arguments
• Sanction

The purpose of cross-examination is:

• To advance your case
• To persuade witnesses that your version is more probable
• To discredit versions which are damaging to your case
• To extract information useful to your case
• To enhance the credibility of your witness
(Note that “common cause” is not subject to cross-examination)

In preparing for a cross-examination, you should:

• Get to know all the facts
• Cross-check versions
• Look at all documents
• Inspect the scene
• Study the case – understand the legal principles
• Anticipate key points of other party’s case – have a plan
• Identify witness of opposition
• Work out what you want to achieve
• Decide on a style or approach for each witness
• Decide how to open cross-examination

You have already covered aspects relating to question types (1.1.1) and the purpose of
questions (1.1.2). You should also consider the seven commandments of effective cross-
examination compiled by Professor Irving Younger.9 The commandments are as follows:
1. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Do not ask a question to which you do not know the answer.
5. Listen to the witness’s answers.
6. Do not quarrel with the witness.
7. Do not allow the witness to repeat his direct testimony.

8 Wolff 2022 LabourSmart Training

9 Perdue n.d. https://www.law.uh.edu/blakely/story-telling/19%20-%20The%20Five%20Question%20Rule-
Cross%20Exam%20Simplified.pdf
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It is also important to note that open questions do not suggest the answer to the person
being questioned and it allows a free range of responses. In the context of cross-
examination, open questions are dangerous grounds as it is difficult to predict what the
answer may be. Leading questions (much like funnel questions) are asked in such a way
that they tend to suggest the answer to the person being questioned. Leading questions
often require a “yes” or “no”” answer and is typically used to gain a desired answer. Be
careful though, leading questions are best for your own witness as a savvy opponent can
and will object if they feel that you are putting words into the witness’s mouth (or on other
legitimate grounds – for example, asking a leading question). One should also consider
asking the same question but phrasing it differently in order to get confirmation on facts
that have not yet been established (again, one does not ask questions based on common
cause), however, if you choose this as a strategy, be sure to space those questions out
so that you are not objected to for repetition. You should basically already have the
answers to your own questions (hence the commandment of not asking questions that
you do not know the answer to); which brings one to the most important point of being
prepared. The build-up of your questions and the order thereof is also very important.
One should not immediately open with the pertinent question. You establish your
grounds first; it is almost like telling a story where your listeners need to be able to “join
the dots”. We will discuss preparing a cross-examination a little later in this section.
Based on the above, complete the activity below in pairs or small groups.

Class/group activity10
Case Study - Length of questions
Set out below are two examples of cross-examination. Please would you read
these examples and decide which, in your opinion, is the better example of
cross-examination.
Give reasons for your choice.

Scenario 1
Q: With regard to the incident of assault which happened on the shop floor I
understand that you witnessed this event and should be able to tell us all about it.
Firstly, I would like to know where you were standing when the event occurred and
whether you have any problem with your vision. I also would like to know whether it
is correct that that part of the factory is full of machines which block your vision?
A: There is nothing wrong with my vision. I can see perfectly well.
Q: You are not answering my question. Please answer my question.
A: Sorry I thought that I did answer your question – could you please repeat your
question.
Q: I asked you whether it is not correct that there are many machines in that part of
the factory which block your vision?
A: Yes, there are machines in that part of the factory, but I could see perfectly well.

Scenario 2
Q: You witnessed this incident?
A: Yes
Q: Where were you standing at the time that you witnessed the incident?

10 Wolff 2022 LabourSmart Training

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A: I was standing near the loading bay looking towards the production line.
Q: Is it not correct that there is a large conveyor belt crossing the loading bay and that
there are forklift trucks moving backwards and forwards all the time?
A: Yes, but I could see very well.
Q: Is it not also correct that you were 20 metres from the scene of the incident.
A: That is correct.
Q: I notice that when you read documents you use glasses. Is that correct?
A: Yes
Q: So, the scenario is that you were standing some 20 metres away from the incident
through which a conveyor belt passes and which is a busy area for fork lifts. Is that
correct?
A: Yes

Class/group activity11
Case Study – Build-up questioning
Consider the facts:

The witness is Ms Mason, aged 53, and she wears glasses.

She was talking on her cell phone at a traffic intersection at 17:30, waiting for
an opportunity to cross the street on foot. A motor collision occurred. The driver
of the other vehicle, the Plaintiff, claims your client, the Defendant caused the
accident through his reckless conduct and his failure to keep a proper lookout.
The witness has testified that the Defendant failed to stop at the intersection,
which, in her view, caused the collision.

At the time the Defendant was driving a dark blue Toyota Hilux bakkie with a
sign on the passenger door which displayed the words: “Blue Line Trading”

Your theory is that: The witness’s attention was not on the vehicles at the time
of the collision (for example, she was returning from work at the time); the
witness’s view was probably obstructed by other vehicles (there being two lanes
on each side of the road at this particular intersection). Vehicle A, driven by the
Defendant, was on the far side of the road at the time of the collision, relative to
the position of the witness

Prepare a series of question, each building upon the previous question, so that
your version of events is put to the witness properly. Remember not to ask any
open-ended question, rather putting short, uncontroversial statements to the
witness until you are able to make the points which may result in the driver
being re-instated.

11 Wolff 2022 LabourSmart Training

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1.2.1.1 Final cross-examination tips

In developing your cross-examination, also take into consideration some final tips
discussed in this section. Always remember that you should question – not talk. You
want to get straightforward answers in order to make your point. You should only cross-
examine if it will benefit your case. Moreover, once you have unearthed what you
need in order to strengthen your case do not be tempted to improve on favourable
answers. It is a good strategy to follow a pattern, this way, the court is able to draw the
conclusions that you need them to in a systematic way but do not be predictable. It is
also important that you do not deliberately try to mislead then witness. The
consequences of that are obvious. You need to have exceptional listening skills (covered
in Unit 3) as you need to listen actively and be cognisant of demeanour and body
language. Furthermore, you need to be mindful of your witness’s actions as well; if the
witness is evasive, you should caution them and never answer a question posed by
a witness. After questioning is completed, put your version of the facts to the witness
and ask them to comment on it and of course, be sure to refute any contrary
evidence at the conclusion of your cross-examination.
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1.3 Logical fallacies

In IURI274, some insight was gained in logic and legal reasoning, including mention of
logical fallacies.

Reflection
What can you recall about logic, legal reasoning, and logical fallacies?

1.3.1 Types of fallacies

Pre-activity (homework)
Instructions:
Watch each of the three videos by clicking on their titles below and, in writing:
1. explain how each scenario presents a fallacy using your own words.
2. offer another example that matches the fallacy in each of the videos.

• Video 1: Apples and oranges

• Video 2: Witch hunt
• Video 3: Doctors

Argumentum ad antiquitatem (the argument to antiquity or tradition). This is the

familiar argument that some policy, behaviour, or practice is right or acceptable because
"it's always been done that way." For example, "Every great civilisation in history has
provided state subsidies for art and culture!" But that fact does not justify continuing the
policy.
Because an argumentum ad antiquitatem is easily refuted by simply pointing it out, in
general it should be avoided. But if you must make such an argument -- perhaps because
you cannot come up with anything better -- you can at least make it marginally more
acceptable by providing some reason why tradition should usually be respected. For
instance, you might make an evolutionary argument to the effect that the prevalence of
a particular practice in existing societies is evidence that societies that failed to adopt it
were weeded out by natural selection. This argument is weak, but better than the fallacy
alone.
Argumentum ad hominem (argument directed at the person). This is the error of
attacking the character or motives of a person who has stated an idea, rather than the
idea itself. The most obvious example of this fallacy is when one side maligns the
character of the other side (e.g., "The members of the opposition are a couple of
fascists!"), but this is actually not that common. A more typical manifestation
of argumentum ad hominem is attacking a source of information -- for example,
responding to a quotation from Richard Nixon on the subject of free trade with China by
saying, "We all know Nixon was a liar and a cheat, so why should we believe anything
he says?" Argumentum ad hominem also occurs when someone's arguments are
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discounted merely because they stand to benefit from the policy they advocate -- such
as Bill Gates arguing against antitrust, rich people arguing for lower taxes, etc. In all of
these cases, the relevant question is not who makes the argument, but whether the
argument is valid.
It is always bad form to use the fallacy of argumentum ad hominem. But there are some
cases when it is not really a fallacy, such as when one needs to evaluate the truth of
factual statements (as opposed to lines of argument or statements of value) made by
interested parties. If someone has an incentive to lie about something, then it would be
naive to accept his statements about that subject without question. It is also possible to
restate many ad hominem arguments so as to redirect them toward ideas rather than
people, such as by replacing "My opponents are fascists" with "My opponents' arguments
are fascist."
Argumentum ad ignorantiam (argument to ignorance). This is the fallacy of
assuming something is true simply because it hasn't been proven false. For example,
someone might argue that global warming is certainly occurring because nobody has
demonstrated conclusively that it is not. But failing to prove the global warming theory
false is not the same as proving it true.
Whether or not an argumentum ad ignorantiam is really fallacious depends crucially
upon the burden of proof. In an American courtroom, where the burden of proof rests
with the prosecution, it would be fallacious for the prosecution to argue, "The defendant
has no alibi, therefore he must have committed the crime." But it would be perfectly valid
for the defence to argue, "The prosecution has not proven the defendant committed the
crime, therefore you should declare him not guilty." Both statements have the form of
an argumentum ad ignorantiam; the difference is the burden of proof.
Argumentum ad logicam (argument to logic). This is the fallacy of assuming that
something is false simply because a proof or argument that someone has offered for it
is invalid; this reasoning is fallacious because there may be another proof or argument
that successfully supports the proposition.
This is another case in which the burden of proof determines whether it is actually a
fallacy or not. If a proposing team fails to provide sufficient support for its case, the
burden of proof dictates they should lose the debate, even if there exist other arguments
(not presented by the proposing team) that could have supported the case successfully.
Argumentum ad misericordiam (argument or appeal to pity). The English translation
pretty much says it all. Example: "Think of all the poor, starving Ethiopian children! How
could we be so cruel as not to help them?" The problem with such an argument is that
no amount of special pleading can make the impossible possible, the false true, the
expensive costless, etc.
It is, of course, perfectly legitimate to point out the severity of a problem as part of the
justification for adopting a proposed solution. The fallacy comes in when other aspects
of the proposed solution (such as whether it is possible, how much it costs, who else
might be harmed by adopting the policy) are ignored or responded to only with more
impassioned pleas. You should not call your opposition down for committing this fallacy
unless they rely on appeals to pity to the exclusion of the other necessary arguments. It
is perfectly acceptable to use appeal to pity in order to argue that the benefits of the
proposed policy are greater than they might at first appear (and hence capable of
justifying larger costs).
Argumentum ad nauseam (argument to the point of disgust, i.e., by
repetition). This is the fallacy of trying to prove something by saying it again and again.
But no matter how many times you repeat something, it will not become any more or less
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true than it was in the first place. Of course, it is not a fallacy to state the truth again and
again; what is fallacious is to expect the repetition alone to substitute for real arguments.
Nonetheless, this is a very popular fallacy in debate, and with good reason: the more
times you say something, the more likely it is that the judge will remember it. The
appropriate time to mention argumentum ad nauseam is when the other team has made
some assertion, failed to justify it, and then stated it again and again. The Latin wording
is particularly nice here, since it is evocative of what the opposition's assertions make
you want to do: retch. "Sir, our opponents tell us drugs are wrong, drugs are
wrong, drugs are wrong, again and again and again. But this argumentum ad
nauseam cannot and will not stand, because no justification for their bald assertions has
been offered!"
Argumentum ad numerum (argument or appeal to numbers). This fallacy is the
attempt to prove something by showing how many people think that it is true. But no
matter how many people believe something, that does not necessarily make it true or
right. Example: "At least 70% of all Americans support restrictions on access to
abortions." Well, maybe 70% of Americans are wrong!
This fallacy is very similar to argumentum ad populum, the appeal to the people or to
popularity. When a distinction is made between the two, ad populum is construed
narrowly to designate an appeal to the opinions of people in the immediate vicinity,
perhaps in hope of getting others (such as judges) to jump on the bandwagon,
whereas ad numerum is used to designate appeals based purely on the number of
people who hold a particular belief.
Argumentum ad verecundiam (argument or appeal to authority). This fallacy occurs
when someone tries to demonstrate the truth of a proposition by citing some person who
agrees, even though that person may have no expertise in the given area. For instance,
some people like to quote Einstein's opinions about politics (he tended to have fairly left-
wing views), as though Einstein were a political philosopher rather than a physicist. Of
course, it is not a fallacy at all to rely on authorities whose expertise relates to the
question at hand, especially with regard to questions of fact that could not easily be
answered by a layman -- for instance, it makes perfect sense to quote Stephen Hawking
on the subject of black holes.
Circulus in demonstrando (circular argument). Circular argumentation occurs when
someone uses what they are trying to prove as part of the proof of that thing. Here is one
of my favourite examples (in pared down form): "Marijuana is illegal in every state in the
nation. And we all know that you should not violate the law. Since smoking pot is illegal,
you shouldn't smoke pot. And since you shouldn't smoke pot, it is the duty of the
government to stop people from smoking it, which is why marijuana is illegal!"
The best strategy for pointing out a circular argument is to make sure you can state
clearly the proposition being proven, and then pinpoint where that proposition appears
in the proof. A good summing up statement is, "In other words, they are trying to tell us
that X is true because X is true! But they have yet to tell us why it's true."
Complex question. A complex question is a question that implicitly assumes something
to be true by its construction, such as "Have you stopped beating your wife?" A question
like this is fallacious only if the thing presumed true (in this case, that you beat your wife)
has not been established.
Complex questions usually appear in cross-examination or points of information when
the questioner wants the questionee to inadvertently admit something that she might not
admit if asked directly. For instance, one might say, "Inasmuch as the majority of black
Americans live in poverty, do you really think that self-help within the black community is
sufficient to address their problems?" Of course, the introductory clause about the
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majority of black Americans living in poverty may not be true (in fact, it is false), but one
might not think quickly enough to notice that the stowaway statement is questionable.
This is a sneaky tactic.
Dicto simpliciter (spoken simply, i.e., sweeping generalisation). This is the fallacy
of making a sweeping statement and expecting it to be true of every specific case -- in
other words, stereotyping. Example: "Women are on average not as strong as men and
less able to carry a gun. Therefore, women can't pull their weight in a military unit." The
problem is that the sweeping statement may be true (on average, women are indeed
weaker than men), but it is not necessarily true for every member of the group in question
(there are some women who are much stronger than the average).
As the example indicates, dicto simpliciter is fairly common. Most of the time, it is not
necessary to call opposing counsel out for making this fallacy -- it is enough to point out
why the sweeping generalisation they have made fails to prove their point. Since
everybody knows what a sweeping generalisation is, using the Latin in this case will
usually sound condescending. It is also important to note that some generalisations are
perfectly valid and apply directly to all individual cases, and therefore do not commit the
fallacy of dicto simpliciter (for example, "All human males have a Y chromosome" is, to
my knowledge, absolutely correct).

Help-you-study activity
Instructions:
Navigate to the Quizlet by clicking here (if prompted for a login- make use of your
Google account) and use it to study the logical fallacies and their definitions as set
out in this section.

1.3.1.1 Logical fallacies applied

Your knowledge of logical fallacies is a vital not only in avoiding them in your own
argument, but it becomes pertinent in pointing out a logical fallacy as a way of removing
an argument from the opposition, rather than just weakening it. Typically, opposing
counsel will respond to an argument by simply stating a counterargument showing why
the original argument is not terribly significant in comparison to other concerns, or how
the argument should not be taken seriously. That kind of response is fine, except that
the original argument still remains in the debate, albeit in a less persuasive form, and the
opposition is free to mount a rhetorical offensive saying why it's important after all. On
the other hand, if one can show that the original argument actually commits a logical
fallacy, you put the opposition in the position of justifying why their original argument
should not be considered at all. If they cannot defend the validity of their argument, then
it will be discredited and not be taken into consideration.
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Here is a crafty example of the identification of a logical fallacy at work:

• State the name of the logical fallacy, preferably in both Latin and English, and
make sure you use the phrase "logical fallacy." Why? Because it is important to
impress on everyone that this is no mere counterargument you are making, nor
are you just labelling the opposition's viewpoint as "fallacious" for rhetorical effect.
Stating the fallacy's Latin name helps, because some people just aren't sure
something's a fallacy unless Aristotle or some other authority called it one. Say
something like, "The opposition points out that the voters supported X by a wide
margin in last year's referendum. But this is just the logical fallacy of argumentum
ad populum, appeal to public opinion!"
• Tell everybody what the fallacy means and why it is wrong. But be careful -- you
must do this without sounding pedantic. You should state the fallacy's meaning
as though you are reiterating what you assume your judge already knows. To
continue the example above, say, "It doesn't matter how many people agree with
you, that doesn't mean it's necessarily right." There, now you've defined for
everyone what's fallacious about argumentum ad populum.
• Give an obvious example of why the fallacy is incorrect. Preferably, the example
should also be an unfavourable analogy for the opposition's proposal. Thus: "Last
century, the majority of people in some states thought slavery was acceptable,
but that didn't make it so!"
• Finally, point out why the logical fallacy is important to mention. "This fallacious
argument should be thrown out . And that means that the opposition's only
remaining argument for X is...."

In general, of course, it's a good idea to avoid logical fallacies, if at all possible, because
a sharp opponent will almost always catch you. It is especially important to avoid obvious
logical fallacies like the one above (argumentum ad populum), because they are
vulnerable to such powerful (and persuasive) refutations. But sometimes, a logical fallacy
-- or at least an unjustified logical leap -- is unavoidable. The most important guideline
for committing such fallacies yourself is to know when you are doing it, and to be
prepared to justify yourself later if the opposition tries to discredit your point.

1.4 Rebuttal
Any counter-argument made against your stance (whether it is applied in the context of
fallacies or not) always calls for a solid rebuttal.
A rebuttal is a response to evidence or an argument which is intended to refute it. In law,
the rebuttal comes up in a very specific context, and the idea of the rebuttal in law has
been expanded to other areas of human endeavour. For example, rebuttals are
integrated into the structure of debates. When making a rebuttal, people can use a
variety of techniques to respond to the statement or evidence they are challenging. The
rebuttal offers an opportunity to respond to evidence, an argument, or a claim. During
the rebuttal, an attempt is made to refute or invalidate the information, and a variety of
tactics may be used ranging from questioning the credentials of the witness to showing
that another version of events may be just as plausible. Rebuttals are deemed an
important part of a fair trial, as many legal systems protect the right to respond to
evidence and witnesses.12
Activity

12 McMahon 2022 https://www.mylawquestions.com/what-is-a-rebuttal.htm

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Instructions:
Access the link below and then answer the questions that follow.
Rebuttal: Definition, Usage and Examples (thoughtco.com)

a) Explain the essence of rebuttal.

b) Explain how rebuttal (and exactly what it entails) can differ from a legal context as
opposed to a debating context.

Consider the structure of a rebuttal:

• Summary (usually of opponent’s weak points)
• Refute opponents’ argument (don’t forget to argue in the alternative, even if )
• Link them to your own argument
• No new evidence
Example13

Argument Counter-argument Rebuttal

The primary focus in Terminally ill patients are Depression can be
medical end-of-life likely to be depressed, managed. The relevance
decisions should be on and, therefore, unable to of depression must be
patient consent, rather consent to their hastened made on a case-by-case
than doctor intention, death in a balanced or basis. Depression does
because it is not a breach acceptable way. not warrant a general rule
against a patient's rights prohibiting patients from
if s/he consents to the consenting to a hastened
termination of their life. death.

Activity
Instructions:
Using the “structure of a rebuttal” set out above the example, try to improve the
quality of the rebuttal in the example. Write it out in paragraph form.

13 Cabrini 2016 https://www.cabrini.edu/globalassets/pdfs-website/ctl/counter-argument--handout-cabrini.pdf

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A rebuttal in context
Have a look at the example of the appellants rebuttal concerning the heads of
argument in the following case by accessing the link below14:

https://cer.org.za/wp-content/uploads/2021/03/30102020-Appellants-Rebuttal-
Heads-of-Argument.pdf

Do you see how the rebuttal is applied in the legal context?

1.5 Conclusion
The focus of this unit has been to focus on asking effective, appropriate questions that
assist you in achieving your goals when it comes to questioning, which is one of the
prime skills a jurist must possess. We also focussed on cross-examination which is
prominent in any trail. Additionally, the very important aspect of logic (and logical fallacies
especially) as it is found in reasoning was discussed and applied. Legal Reasoning and
the FIRAC method were also discussed and applied in a practical manner. The
importance of the latter is immense for any jurist. Lastly, the art of rebuttal, which is
another invaluable tool for a jurist, was also discussed and applied.

14 Endangered Wildlife Trust and Others v Director-General, Department of Water and Sanitation and Another 2019
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