Pros and Cons of Pleading in the Alternative
Pleading in the alternative has long been an accepted practice for both plaintiffs and defendants. Although courts may be quick to knock out causes of action for being duplicative, many practitioners don't hesitate to plead almost every viable alternative theory, or request for relief.
For attorneys on the fence on whether or not pleading in the alternative is a good idea, below, you'll find a short list of pros and cons to help you weigh your decision.
Pro: An Alternative Theory or Request Could Win the Day/Save Your Case
There's no shortage of cases where an alternative request for leave to amend saved it from being dismissed on a 12(b) motion. While alternative theories (causes of action) are successful less often, not pleading one effectively serves to cut off a potential avenue for relief. You can't win the lotto if you don't buy a ticket.
Con: Inviting a Ruling in the Alternative
If you plead for relief in the alternative in a way that splits the difference between your and your adversary's positions, a court may view your alternate request as an invitation to rule in the alternative, even if your primary request should have prevailed. So, in the alternative:You won't lose the lotto if you don't buy a ticket.
Pro: Alternative Theories Require Adversaries to Work Harder
When you plead every cause of action or defense, including the kitchen sink, your adversaries will have their work cut out for them in every motion they file. And while they may be able to knock out a few of the weaker alternative theories, it will allow you to pick and choose which theories you want to focus on.
Con: Alternative Theories Can Result in More Work for You
From discovery to motion practice, if your alternate theories survive, you'll surely be tasked with defending your alternative theories, and you could be looking at a lot more work for yourself.
Pro: Use It or Lose It!
When it comes to making the record, if you plead and lose on an alternative theory, you may have grounds for a later appeal.
Con: Credibility Considerations
One of the bigger issues that arises when pleading in the alternative is credibility. If the theories of liability are drastically different, or potentially conflict with each other, or just really really out there, a court may look upon the pleader with a bit more skepticism than had the case been plead concisely.
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