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Law and disorder

Legal argumentation gets some scientific scrutiny

Ian Brooks 3 February 2008

www.lablit.com/article/349

Getting pounded: lawyer-speak is seldom scientific

Unlike scientists, my legal eagle chums have the remarkable ability to jump straight in on almost any discussion with sweeping and grandiose statements

Look for a cat. Look for a cat that looks like a rat with no hair on its legs. But if you find it, pretend you haven’t.”

It was typical greeting, yelled at me as I shut the front door to my friend Gwyn’s house. The owner of the voice was in another room, apparently also looking for this creature. A command which would have once dumbfounded me now just caused me to glance casually around the room. I spotted the eponymous “Rat Kitty” cowering under the coffee table.

“Well, she’s not under the coffee table.” I called, letting Gwyn know that her cat hadn’t escaped again. Unfortunately it also let Momo, the world’s oddest pug, know that I was in the house. Not much bigger than a soccer ball, but with a heart the size of Tennessee, he came charging in the living room, all spleen and vinegar about being caught off guard. Thankfully he was sidetracked by Rat Kitty who, screeching, fled into the guest bedroom, closely followed by the suddenly Baskevillian Momo.

“Well, I had an awesome day in court today! Wanna hear about it?” As if nothing untoward had happened, Gwyn brought me a glass of wine, plopped down on the sofa and began telling me about her day.

**********

I am very fortunate to have some pretty cool, flamboyant and occasionally odd friends. Gwyn is a lawyer, working for a Federal judge here in Memphis. Her best friend Chris is a good friend of mine too. He’s an Assistant District Attorney, and decidedly more masculine than the typical svelte blond ADA portrayed on the TV show Law & Order. When the three of us get together it often heralds an evening of intense discussion, bullshitting and wine consumption.

With my scientific background and their legal training we can argue for hours on any subject. Each of us has a unique style we bring to any discussion. My training allows me to absorb enormous amounts of information and look for keys, patterns, similarities or significant differences in an argument. Chris, as courtroom lawyer, pounces on any sign of weakness, vehemently exploiting any cracks in the logical armor of your defense. Gwyn fights in a similar way, and also has an amazing memory, dredging up lost information from hours, if not days before. I can honestly say it can be very draining arguing with the pair of them. However, I love watching the way their minds work, their arguments following such different tangents from mine.

I usually take my stand on any argument only after very careful deliberation. I’ll hold up this metaphysical object and examine it from every angle, exploring weaknesses and shoring up strengths. I will dispassionately discard failures and second rate ideas until only the strongest and most likely viewpoint remains. And I’ll do so carefully, not minding in the least if my “hypothesis” is falsified. After all, that’s science. Form a hypothesis, test it, improve it and move on. However, once you’ve got your argument set, be prepared to fight tooth and nail for it. It’s a competitive world.

My legal eagle chums fight a completely different battle. Both of them have the, to me, remarkable ability to jump straight in on almost any discussion with sweeping and grandiose statements. I stand in awe in as they slash and burn with terrible fury against discursive buttresses I had thought secure. But wait – was that a logical flaw in the argument? Counter attack! As I sally forth to bring simple victory, I see not their army in rout, but a whole new battlefield; the argument has simply moved on. A sudden topic shift I cannot compete with. I need to time to think, to analyze! I can only wait in my Ivory Tower as they rage against each other, testing and honing new weapons to be used against me.

I was curious about this constant and exhausting turn of events, so I questioned them on it. Both knew the answer, so obvious in retrospect.

“You search for fact, mate,” Chris said. “We don’t. You need to prove your argument; that’s what scientists do, yeah?”

I nodded, confused.

“What he’s saying is that we don’t have to prove anything. We only have to disprove something,” Gwyn said. “In other words, my case isn’t won on my proving the prosecution right, it’s won by proving the defense wrong.”

**********

This argument amazes me as the antithesis of true science. However, I have to admit, it is an increasingly common stance. It's more and more common to see high-impact scientific papers that don’t actually say much at all, containing multiple beautiful figures, obviously representing months and years of hard work and careful experimentation. But at the end I am left unsated. The authors seem less and less inclined to make bold postulations about the future. As funding becomes tighter with each financial year, and as universities around the world pump out more and more graduate students and post-docs, the competition for limited resources has become terribly fierce. It’s often safer and easier now to attack the data of your once-upon-a-time-colleagues and to try to secure your name in the eyes of the funding agencies rather than risk it all on something new that will stand out and draw fire for being novel, untested, unproven.

As senior scientists rail against this state of affairs in the editorials and front matter of scientific journals, those of us still on the battlefield can only hope to hold the line. What the future holds and what can be done are huge discussions, beyond the scope of this tale. However, I know of one great crack in the Ivory Tower that must be patched soon. It is the lack of public accountability, the lack of transparency in internal review. As I put it to Chris, “By your argument you can really say any old thing to argue with the defense lawyer!”

“Only within reason”, he countered. “Remember, everything we do is held accountable and is open to public scrutiny. We’re elected, or at least work for, elected officials and as such there is a moral imperative for ethical honesty.”

“Us too!” I said.

Chris saw the hesitation in me, the half stammer, the faltering timbre of my voice. In his best courtroom voice he boomed, “You too, Dr. Brooks? And when the hell was the last time you saw a scientist disbarred for lying?”

We stand guilty as charged.