I've been thinking a lot lately about the tone and words used by individuals in advocating for change. Part of the reason I think about that is many of our students will choose the roles of advocates for change.
Another, perhaps more obvious impetus for this contemplation is the increasing use of demonization to characterize "others" you disagree with. In the language of debate, such an approach is an ad hominem attack, where the argument is directed against the person rather than the position they are maintaining. And it seems the usual adjective to add for that style is to call it a "vicious ad hominem attack."
I understand anger. I understand the emotion that can fuel heightened language. But, the plain fact of the matter is, that style often is not effective in achieving change in the law, especially in the courtroom. I get it, that rationality sometimes isn't effective either. That's enormously frustrating. But what I tend to see as a response to vicious ad hominem attacks is for the target to either respond in kind (more shouting, more name calling) or go "underground." It causes the target to double-down on his or her own personal, now equally angry, position. And courts do not respond well at all to such a style of advocacy.
As I'm typing these words, I'm thinking about some of the advocacy that is being used by opponents of guardianships. I see the occasional such comment (sometimes too long to attach to a post) on the Elder Law Prof Blog. Again, I understand the anger of family members who perceive a loved one to be the victim of a self-dealing agent, whether that bad agent was a guardian, a trustee, someone acting under a power of attorney, or simply someone who was made an accommodation party on a joint account. The anger is justified.
But, when the opponents of the bad agents cast an overbroad net against all courts or all judges or, even, all guardians, using, dare I say, "trumpian" adjectives and nouns to characterize all individuals serving in such roles, it just isn't very effective. It closes the door to change in the law. At least, that's my 2 cents on the topic. We need better solutions for instances where individuals did not choose their own trustworthy agents.
I was struck by a couple of news stories I read today by individuals who use anger to characterize disease, especially dementia. Now, here, I think the anger and harsh language as a rhetorical tool is different, and has a different effect. For example, a recent article described actor Don Cheadle's anger, sorrow, and disbelief following the loss of his mother. He is described as saying:
"She went through a real tough spell. She had dementia and it's just an evil, mean disease. To watch someone just deteriorate in that way, it's hard to believe."
Here, even though obviously the disease isn't a sentient being, the characterization of it as evil, as, in essence, an enemy, seems more effective. The desire might be for an army to rally to oppose the devastation wrought by the disease.
Just a bit of mid-week musing. Some of this is probably influenced by being the daughter of a judge who worked 7 days a week for 35+ years, far harder and longer than necessary for his job or any job. Or, it could be my musing is the result of far too much caffeine as I work on summer law reform projects, and as I try to sort out what arguments are the most likely to be effective.
June 21, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink
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