Whataboutism Versus Counterclaims in Litigation

National Association of Consumer Bankruptcy Attorneys

Whataboutism Versus Counterclaims in Litigation

Brian V. Lee

October 24, 2019

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Whataboutism is an attempt to distract from an opponent’s attack by charging them with hypocrisy. Whataboutists try to deflect an adversary’s charge without actually disproving it.

Whataboutism (and its counterpart bothsidesism) is much in the news lately in the context of our partisan national politics. But the strategy is older than logic itself. The Latin term for the logical fallacy of is tu quoque, or “you also.”

Father: You should stop smoking. It’s bad for your health.
Son: But you smoked for 40 years.

Whataboutists do not try to address factual assertions, and neither accept nor refute an opponent’s position. Whataboutism is a shoddy litigation tactic and cannot take the place of counterclaims in the development of a sound litigation strategy.

There are no substitutes for well-developed counterclaims

Whataboutism is no substitute for well-developed counterclaims. A counterclaim in litigation offsets or directly addresses the claims of an adversary. Counterclaims can also be entirely different, but related claims, in the same the litigation. Or counterclaims can bring in third parties to the litigation. Counterclaims are a vital component of a strong defense strategy.

Whataboutism, on the other hand, cannot take the place of well-developed counterclaims. Instead, it belongs in the category of ineffective strategies that includes tit-for-tat and “I know you are, but what am I?”

Moreover, whataboutism introduces easily-detectable and potentially damaging red herrings into litigation. It also tends to lend itself to conspicuous and counterproductive ad hominem accusations.

There are no perfect litigants

Very few, if any, litigants enter the courtroom with perfectly clean hands. Most claims have counterclaims, and most defendants have valid defenses. Most plaintiffs are imperfect, because nobody is perfect. There are no perfect litigants.

Courts are tasked with making factual findings and balancing the equity of the parties. Judges and juries alike will see through and discount whataboutist arguments. But properly established counterclaims may not only vitiate a plaintiff’s claims; they may also give rise to liability themselves. Whataboutism can never do this.

Avoid whataboutism and advance your counterclaims instead

Whataboutism signals an immature, underdeveloped defense strategy. It may be tempting to answer claims with, “But what about . . .?” Resist the urge. Instead, first attempt to directly address the claim through well-grounded defenses. Disproving the factual veracity of a claim goes much further toward undermining that claim than does introducing irrelevant (even if related) whataboutist countercharges.