In general terms, we can say that lawyers analyze and argue about what the rules are and how they apply to particular situations. The ways that lawyers think, argue, and eventually win arguments are relevant to dealings in business, in politics, in church, in the military, in sports, or in other institutions or relationships.
Sophistry, Rhetoric, and Winning
It’s great to be persuasive when you’re right. It’s great to be able to resist sophistry when your opponent is wrong. It is a guilty pleasure to be persuasive when you are wrong.
Lawyers are the modern heirs of the ancient Greek sophists, the worst of whom sought to “make the weaker argument appear the stronger.” The first way to define strength in this context is by how well you persuade your audience. If, however, a strong argument, as defined here, were one that convinces others of your position, then it would be impossible to make the weaker argument appear stronger. By “appearing” stronger, it would be stronger. Therefore, we need a different definition of strength than mere persuasiveness.
But, you might ask, where does this objective test come from? Is it based on first principles, justice, or truth? Unfortunately, as culturally-biased human beings, we often disagree about first principles, justice, and truth. A more practical version of this second definition would deem stronger the argument that is more substantively appealing—the one that resounds more greatly in logic and policy.
By making the weaker argument in this sense appear the stronger, lawyers or other sophists may subvert first principles, truth, or public policy. In order to make the weaker argument appear the stronger, they might be required to present arguments falsely. Sophistry is thus ethically unappealing.
Lawyers are trained to think in terms of legal right and legal wrong (which is one of the things that people find objectionable about them). If the law says you are responsible for a problem, then for the lawyer, that’s the end of the discussion. But in a more nuanced social and relational setting, things are not always so black and white, and the legal system can ignore important shadings of right and wrong. This is not necessarily a bad thing.
Sometimes decisions must be made, even if they are imperfect and even if there is a degree of right on both sides. However, it is good to remember that there is significant nuance. Sometimes it is also politic to recognize the values that motivated the losing claim and even to compromise when you would otherwise win in formal dispute settlement procedure.