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Monday, August 13, 2018

JURISPRUDENCE


I have a dim memory of an ancient case in the English Common Law, dating maybe from the 12th or 13th century, concerning a man who was sued for damages by a neighbor who charged that he had borrowed a jug and returned it cracked.  His defendant’s argument went something like this:  The jug does not exist; I did not borrow it; I returned it whole; and it was broken when I borrowed it.  I think this is now called “arguing in the alternative.”

It reminds me of Rudy Giuliani’s defense of Trump.

7 comments:

Paul Kern said...

So help me God.

Dean said...

Can't find the early English case, but arguing in the alternative is fair game in federal courts:

"Defendant has raised numerous arguments as to why there was no enforceable contract; why, if there was such a contract, it was plaintiffs who breached; and why, if it was defendant who breached, plaintiffs' recovery is either limited or non-existent. Initially, plaintiffs argue that by counter-claiming for breach of a contract which defendant claims did not exist, defendant has ratified the contract.... Federal Rule of Civil Procedure 8(e) specifically allows a party to plead in the alternative.... Defendant is not in the position of arguing that something is both a fact and not a fact. Rather, he is arguing as to how the facts should be interpreted. Defendant's counterclaim, therefore, has not admitted the validity of the contract in question."

Koedding v. Slaughter, 481 F. Supp. 1233, 1237 (E.D. Mo. 1979), aff'd, 634 F.2d 1095 (8th Cir. 1980)

Of course, neither Giuliani nor Trump is in court. Yet.

Robert Paul Wolff said...

Please tell me you are a Professor of Law!

Dean said...

A librarian of law and...you name it!

Robert Paul Wolff said...

Even better! :)

MS said...

As your son will tell you, pleading in the alternative is a standard methodology that is taught in first year Civil Procedure. It can be very infuriating. In the example provided by Dean, the pleading is not as absurd as it may appear. Whether a contract has been formed, and what its terms are, can be a complex fact issue when there is no written document to memorialize what was agreed on, if anything. So the defendant is disputing whether, as a matter of law, an oral contract was formed by the words the parties exchanged; if the court determines that a contract was formed, then, he claims, the plaintiff, not the defendant, breached it.

What Giuliani is doing he may think is like pleading in the alternative, but it is not as sophisticated.

Jon said...

This story is commonly attributed to Freud (he tells it in *Interpretation of Dreams*). A quick search through newspaper archives, though, reveals its appearing as a lawyer joke at least as early as 1837.