Build Arguments with Care
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Build Arguments with Care

March 2014

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Like a child standing next to a broken cookie jar who says both "I didn't do it" and "I'm sorry - it was an accident," defense lawyers often must "plead in the alternative." Law.com defines the alternative as "a legal fiction in which a pleader alleges two or more legal claims that are inconsistent with each other." The definition in Black's is a little different. It describes the alternative claims or defenses as "not necessarily consistent," but then it offers as an example a complaint that actually alleges inconsistent claims: Count I says the defendant's conduct was intentional, and Count II says it was negligent.

As inconsistent as this pleading practice might seem to nonlawyers, it has always been recognized in both the Federal Rules and the California Code of Civil Procedure. Pleading in the alternative is really just a corollary to the trial lawyer's prime directive to sue everyone you can find for anything that might stick.

However, arguing mutually exclusive points can get tricky, as the child who broke the cookie jar is sure to discover. Thus, when lawyers want to write persuasively, they should make their arguments cumulative, not alternative.

Too often, a pleadings writer will introduce a second point (one that is inconsistent with the first) by saying something like, "Assuming arguendo that it didn't happen that way ..." or "Should the court find the conduct was not outrageous. ..." Thus, the writer begins the second argument by conceding the first and offering an alternative, saying in essence, "If you don't buy that explanation, try this one." And that's a problem. Rather than say, "Even if we are wrong about the law or facts, we have another argument," the writer ought to say, "Even if the law or facts were different so that the first argument didn't exist, we would still win." This method of combining arguments using the subjunctive (were and would) is especially effective if it relies on a fact that no one can deny.

The key is to use the subjunctive mood. If you don't remember what that is, the subjunctive mood (it's not a tense, like pluperfect, or a voice, like passive) expresses an idea that is factually untrue, always takes the plural form of the verb, and always goes back in time. Thus, if the Cowardly Lion is talking in the present, he sings, "If I were the king of the forest," and if he is talking about the past, he sings, "If I had been the king of the forest." In either case, he uses the subjunctive to express that he is not, or was not, the king.

For example, let's say a defendant's motion for summary judgment is based on two alternative arguments. The first is that the plaintiff is relying on a statute that was amended in 2009, after the conduct occurred but before the suit was filed, and the amended statute clearly permits what the defendant is alleged to have done. The second, alternative argument is that the original statute didn't prohibit the defendant's conduct either. Consider which of the following strikes you as the best way to segue from the first of these points to the second:

1. "Assuming arguendo that the original statute applies to claims filed after 2009, it does not prohibit Defendant's conduct."

2. "Even if the original statute applies to actions filed after 2009, it does not prohibit Defendant's conduct."

3. "Even if the original statute applied to claims filed after 2009, it would not prohibit Defendant's conduct."

4. "Even if Plaintiff had filed this action in 2008, before the amendment, summary judgment would still be appropriate here, as neither the original statute nor its amended version prohibits Defendant's conduct."

If you, like me, think each of these options is better than the one before it (meaning No. 4 is best), then you must wonder why so many lawyers use No. 1. In addition to using Latin unnecessarily, it concedes that the court can find against the writer on the first issue. So does sentence No. 2, though it avoids the unnecessary Latin. Sentences No. 3 and No. 4 both use the subjunctive to express that the condition is not true, but No. 3 refers to a legal conclusion that the other side is sure to argue with, while No. 4 refers to a fact that nobody can argue with. Thus, the arguments in No. 4 are not necessarily consistent, but they aren't necessarily inconsistent either, as Black's suggests. They are cumulative, rather than alternative.

The particular "fact" that you choose to put in the subjunctive - that is, to say is not true - should be unarguably false, and it should relate to an element of the rule you are working with. To take another example, if your summary judgment motion argues both that your client's conduct was justified and that the statute of limitations had expired, the date when the cause of action accrued is part of the rule you are relying on for the statute-of-limitations argument. If the first argument is about whether the statute began to run when the conduct occurred or when the Plaintiff discovered the harm, it is not enough to write, "Even if the statute of limitations did not begin to run until Plaintiff discovered the harm, Defendant's conduct was justified." Instead, use the subjunctive with a fact everyone agrees is not true: "Even if Plaintiff had filed this action the day after [the conduct the claim is based on], summary judgment would still be appropriate, as Defendant's conduct was justified."

Note that when you use the subjunctive, you are saying the statement is "contrary to fact," so you don't need to add that as a disclaimer, as in, "If I were the king of the forest, which I am not."

Now, let's take the example from Black's, with claims for both intentional and negligent infliction of emotional distress in the same complaint. Under the language defining these torts - indeed, in the names of the torts themselves - the key difference between them is that the first requires intent to cause the distress, or at least knowledge that distress was likely to result. Thus the "fact" expressed in the subjunctive should relate to that element. But intent and knowledge are legal conclusions; we need a fact that the other side can't dispute. So it is not enough to say, "Even if Defendant's mistreatment of Plaintiff did not rise to the level of intentional conduct, it would still be negligent," because that construction relies on a disputable legal conclusion: that the conduct was not intentional. Similarly, "Even if Defendant had not known of Plaintiff's fear of spiders, he surely knew that spiders are scary," relies on a conclusion about what he knew, which he can deny. Instead, the writer should use one or more of the facts that proves Defendant knew (or should have known): "Even if Defendant had not been present when Plaintiff ran from the room shrieking about spiders. ..."

By arguing "not necessarily consistent" points cumulatively, rather than alternatively, we not only provide a smooth transition from one argument to the next, we also accomplish two other things: We avoid conceding the first point, and we reemphasize facts that are pivotal to the first argument, suggesting that the other side's argument relies on a fact that is not true. Rather than saying, "I've got another argument instead of that one," we say, "I've got another argument in addition to that one." Assuming arguendo that is something you want to do, why not give it a try?

Clyde Leland, a member of California Lawyer's editorial advisory board, teaches legal writing and presentation skills.

Reader Comments

James Simon - March 10, 2014
Regarding the paragraph that starts, "The particular 'fact' that ...", you made changes to the article in print. In print the two sentences that start with, "Even if Plaintiff..." are identical and therefore confusing as they are supposed to be different. In this on-line article the two sentences are different, but I can't tell the distinction. The first sentence uses the words, [the conduct in question] and the second sentence uses the words, [the conduct the claim is based upon], .... I think that you should point out that you changed or corrected the print version. I'm also unsure of the distinction between the two sentences and maybe you could explain the difference.
Scott Akin - May 20, 2014
Be advised that the print version of this article had a rather glaring copy editing error. In the paragraph beginning "The particular 'fact' . . ." an error occurred in the closing example. While the e-copy here is correct, the print version repeats the suggested formulation. I spend 10 minutes rereading the printed version, because like all of us, we innate distrust ourselves: "Did I miss something?" Only by ticking off the work order of each did I assure myself that a copy editing error had occurred. I actually similar copy editing errors on the MBE, and of course routinely in media. As a long-time journalist-editor turned lawyer, I'm well aware that editorial can't be 100% at 100% of the time: it's great that the online version was correct.

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