Legal Definitions - alternative pleading

Alternative pleading is a legal strategy that allows a party in a lawsuit, such as a plaintiff or defendant, to present two or more different legal claims or defenses that might seem contradictory or inconsistent with each other.

This approach is fundamental to the legal process, especially in the early stages of a lawsuit before extensive evidence has been gathered. At this "pleading stage," a party might not yet have all the facts to definitively know which specific legal theory will be most strongly supported by evidence later discovered. Alternative pleading ensures that a party doesn't lose a potentially valid case simply because they guessed incorrectly about the precise legal basis for their claim or defense before all the information is available.

Here are a few examples to illustrate how alternative pleading works:

• Scenario: A Business Dispute Over Software Development

  Imagine a small business hires a software development firm to create a custom application. The project is delivered late, over budget, and with significant bugs. The business decides to sue the software firm.

  • Alternative Claims: The business might plead two inconsistent claims:
    • That the software firm breached their contract by failing to deliver the software as specified and on time.
    • That the software firm committed fraud by intentionally misrepresenting their capabilities and their intent to deliver a functional product from the outset.
  • How it Illustrates Alternative Pleading: At the initial stage of filing the lawsuit, the business knows it suffered damages, but it's unclear whether the firm was merely incompetent (a breach of contract) or deliberately deceptive (fraud). These two claims are inconsistent because one implies a failure to perform a legitimate agreement, while the other suggests a deliberate deception from the start. Alternative pleading allows the business to pursue both possibilities until discovery uncovers emails, internal communications, or other evidence that clarifies the firm's true intent and performance.

• Scenario: Damage to Property from Neighboring Construction

  Consider a homeowner whose house develops significant cracks in its foundation and walls after a neighboring property begins a large-scale excavation and construction project.

  • Alternative Claims: The homeowner might plead:
    • That the construction company was negligent in its excavation methods, failing to take reasonable precautions to protect adjacent properties.
    • That the construction activity, due to its inherently dangerous nature (e.g., deep excavation or use of heavy machinery near an existing structure), falls under strict liability, meaning the company is responsible for damages regardless of whether they were negligent.
  • How it Illustrates Alternative Pleading: The homeowner knows their property is damaged and believes the construction is the cause. However, they may not know if the damage resulted from the construction company's carelessness (negligence) or if the activity itself was so inherently risky that the company is legally responsible even if they followed all safety protocols (strict liability). These are distinct legal theories for assigning responsibility. Alternative pleading allows the homeowner to pursue both avenues, letting the evidence gathered during discovery determine which theory is most appropriate for recovery.