Alternative pleading (or pleading in the alternative) is the legal term in the
law of the United States
The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the most important is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...
for a form of
pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudi ...
that permits a party in a court action to argue multiple possibilities that may be
mutually exclusive
In logic and probability theory, two events (or propositions) are mutually exclusive or disjoint if they cannot both occur at the same time. A clear example is the set of outcomes of a single coin toss, which can result in either heads or tails ...
by making use of
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
.
A pleading in the alternative sets forth multiple
claims
Claim may refer to:
* Claim (legal)
* Claim of Right Act 1689
* Claims-based identity
* Claim (philosophy)
* Land claim
* A ''main contention'', see conclusion of law
* Patent claim
* The assertion of a proposition; see Douglas N. Walton
* A righ ...
or defenses either hypothetically or alternatively, such that if one of the claims or defenses are held invalid or insufficient, the other claims or defenses should still have to be answered.
Description
One example is submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.
At a late 1970s
American Bar Association
The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. Founded in 1878, the ABA's most important stated activities are the setting of acad ...
seminar in New York, Richard "Racehorse" Haynes gave this example:
"Say you sue me because you say my dog bit you. Well, now this is my defense: My dog doesn't bite. And second, in the alternative, my dog was tied up that night. And third, I don't believe you really got bit. And fourth, I don't have a dog." Normally such arguments would seem to cancel each other on their face; however, legally "even if" and "anyway" clauses need not be argued; mutually exclusive defenses can be advanced without excuses for their relationship to each other. Of course jurists might be influenced by dual defenses such as "my dog was tied up" and "I don't have a dog", but this must be weighed against the fact that defenses may not be allowed if they are introduced too late.
When alternative pleading is logically inconsistent, it constitutes
kettle logic
Kettle logic (''la logique du chaudron'' in the original French) is a rhetorical device wherein one uses multiple arguments to defend a point, but the arguments are inconsistent with each other.
Jacques Derrida uses this expression in reference ...
.
Civil law
The
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
Federal Rule of Civil Procedure 8(d)(2) states that " party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."
This has been explained as being intended to accommodate "alternative theories" in cases where "the exact nature of the facts is in doubt" or the pleading party "does not know which of the alternatives is true or can be established by the evidence." However, this does not mean inconsistent statements can be given for facts within a party's knowledge.
In
New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
, pleading inconsistent facts in the alternative may not be used as an admission against that party.
England and Wales
In the courts of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, under the
Civil Procedure Rules
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...
(CPR), a party is required to sign a statement of truth to verify facts in the case. Citing the CPR, a
trial court
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
rejected an amendment giving a new version of the pleading that was contradictory to the original. However, the
Court of Appeal of England and Wales
The Court of Appeal (formally "His Majesty's Court of Appeal in England", commonly cited as "CA", "EWCA" or "CoA") is the highest court within the Courts of England and Wales#Senior Courts of England and Wales, Senior Courts of England and Wal ...
disagreed and found that the purpose of Part 22 of the CPR is not to "exclude the possibility of pleading inconsistent factual alternatives".
Criminal law
Because pleading in the alternative is generally permitted in criminal cases, a defendant may claim to have not committed the crime itself, but at the same time may claim that if the defendant had committed the crime, the act was excused for a reason such as insanity or intoxication, or was justified due to provocation or self defense. However, a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
will naturally be suspicious if a defendant claims the benefits of, for example, both
alibi
An alibi (from the Latin, '' alibī'', meaning "somewhere else") is a statement by a person, who is a possible perpetrator of a crime, of where they were at the time a particular offence was committed, which is somewhere other than where the crim ...
and
self defense
Self-defense (self-defence primarily in Commonwealth English) is a countermeasure that involves defending the health and well-being of oneself from harm. The use of the right of self-defense as a legal justification for the use of force in ...
.
Conversely, if the prosecutor puts forth alternative facts which are inconsistent with each other, the inconsistency may present confusion to the jury during deliberation of the verdict in term of the requirements of being unanimous. For example, the
Constitution of Oregon
The Oregon Constitution is the governing document of the U.S. state of Oregon, originally enacted in 1857. As amended the current state constitution contains eighteen sections, beginning with a bill of rights.
requires that the guilty verdict of a
first-degree murder
Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the c ...
must be unanimous. In ''State v. Zweigart'', 344 Or. 619 (Or. 2008), the
Oregon Supreme Court
The Oregon Supreme Court (OSC) is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States.all the facts material to prove the crime." This means the jury would not be allowed to have half of the jurors using one set of facts and the other half using another even if all of them agree that the defendant is guilty.
Kettle logic
Kettle logic (''la logique du chaudron'' in the original French) is a rhetorical device wherein one uses multiple arguments to defend a point, but the arguments are inconsistent with each other.
Jacques Derrida uses this expression in reference ...