Alternative pleading


Alternative pleading

Alternative pleading permits a party in a court action to argue multiple possibilities that may be mutually exclusive. It is a legal fiction.

A pleading in the alternative sets forth multiple claims 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.

One example, submitting an injury complaint alleging that the harm to the defendant caused by the plaintiff 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 1970's American Bar Association seminar in New York [http://www.excaliburautomobile.com/Image/Circle&Sword/Vol3/page5.htm] , 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.

Civil Law

The United States Federal Rules of Civil Procedure [http://judiciary.house.gov/media/pdfs/printers/108th/civil2004.pdf] state "...A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds..."

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 will naturally be suspicious if a defendant claims the benefits of, for example, both alibi and self defense.

References

* [http://www.wordwebonline.com/en/PLEADINGINTHEALTERNATIVE http://www.wordwebonline.com/en/PLEADINGINTHEALTERNATIVE]
* [http://dictionary.law.com/default2.asp?selected=2392&bold=%7C%7C%7C%7C http://dictionary.law.com/default2.asp?selected=2392&bold=%7C%7C%7C%7C]
* "The Wall Street Journal", Tuesday, October 31, 1978, reprinted spring 1980 in a small circulation [http://www.excaliburautomobile.com/Pages/Circle&SwordUS.htm magazine] , available [http://www.excaliburautomobile.com/Image/Circle&Sword/Vol3/page5.htm here] .


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Look at other dictionaries:

  • alternative pleading — see pleading 1 Merriam Webster’s Dictionary of Law. Merriam Webster. 1996. alternative pleading …   Law dictionary

  • alternative pleading — A form of pleading which was formerly prohibited but now recognized under Federal and state Rules of by which the pleader sets forth two or more statements by way of claim or defense which are not necessarily consistent with each other. When two… …   Black's law dictionary

  • alternative pleading — A form of pleading which was formerly prohibited but now recognized under Federal and state Rules of by which the pleader sets forth two or more statements by way of claim or defense which are not necessarily consistent with each other. When two… …   Black's law dictionary

  • alternative pleading — noun a pleading that alleges facts so separate that it is difficult to determine which facts the person intends to rely on • Syn: ↑pleading in the alternative • Topics: ↑law, ↑jurisprudence • Hypernyms: ↑pleading …   Useful english dictionary

  • pleading — plead·ing n 1 a: one of the formal declarations (as a complaint or answer) exchanged by the parties in a legal proceeding (as a suit) setting forth claims, averments, allegations, denials, or defenses; also: a written document embodying such a… …   Law dictionary

  • alternative — al·ter·na·tive 1 /ȯl tər nə tiv, al / adj 1: alternate (1) 2: offering or expressing a choice an alternative contract see also alternative pleading at …   Law dictionary

  • Pleading — In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion. By stating what claims and defences are at issue, pleadings establish… …   Wikipedia

  • pleading in the alternative — noun a pleading that alleges facts so separate that it is difficult to determine which facts the person intends to rely on • Syn: ↑alternative pleading • Topics: ↑law, ↑jurisprudence • Hypernyms: ↑pleading …   Useful english dictionary

  • alternative writ of mandamus — A writ, issued by the court in the beginning of a mandamus proceeding under older practice, which corresponds to a common law declaration or to a complaint or petition in an ordinary action and usually deemed to be the first pleading in the cause …   Ballentine's law dictionary

  • prayer in the alternative — A prayer in a pleading by a plaintiff in doubt as to the specific relief to which he is entitled, being in the alternative, so that if one kind of relief be denied, another may be granted, each kind being consistent with the case made by the… …   Ballentine's law dictionary


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