Thursday, April 3, 2003


One of the things that separates lawyers from humans is the concept of "pleading in the alternative." In a nutshell, this means that a party advances multiple theories, any of which could produce the desired result. The Tort Lady, as we called my visiting torts professor at Boalt, often gave as example "I never had your vase, it was broken when I got it, and it was whole when I gave it back to you." The rationale is that by advancing multiple theories, any of which would, if believed by the judge or jury, produce the desired legal result. Most lawyers understand that this is a necessary evil, but to most non-lawyers it seems a bit sleazy.

Of course, just because theories are "alternatives" does not mean they are mutually inconstent. If someone claims that you injured them during a football game, and you do not believe this is true, there is nothing wrong with arguing that (a) you didn't injure him and (b) even if you did injure him, he assumed that risk by playing football. I think most juries understand this, and will not be irked by this kind of "pleading in the alternative" (though this may be a good opportunity to remind the reader that I am a corporate lawyer, not a litigator, so I can't say that I'm speaking from personal experience on this issue).

Other times, the alternative theories appear inconsistent at first blush, but only because one theory takes the high road and the other does not. Take, for example, the infamous "separate but equal" case of Plessy v. Ferguson, 163 U.S. 537 (1896). Everyone remembers that Homer Plessy challenged the constitutionality of a law that prohibited him, as a black man, from riding in a "white" car on a train, in violation of Louisiana law. Had Mr. Plessy won on that theory, the nation may have been spared a century of Jim Crow laws,and all that went with that. What people do not remember, however (most, I suspect, never learned this in the first place) was that part of Mr. Plessy's defense was grounded on the theory that he was 7/8 Caucasian, and thus should not be considered "legally black" at all. At first blush, this sounds shocking: how could his lawyers defend him on a basis that practically accepts the very racism they were challenging in another part of their brief? The answer is that Homer Plessy's lawyers represented Homer Plessy, not all blacks who were victims of racial discrimination in Louisiana. A victory on the theory that Homer Plessy wasn't black would have been a pyrrhic one for the cause of civil rights, but for Plessy himself, it would have been just as useful as an acquittal on any other basis. And really, there is no inherent inconsistency in an argument that boils down to "I'm not a member of Race X, and even if I were, that would not give you the right to discriminate against me."

Sometimes, though, Plessy- style alternatives can backfire. My bet is that if Clara Harris had defended herself strictly on the theory that her husband's outrageous behavior pushed her over the edge, she might have gotten a manslaughter conviction or even an acquittal on the basis of "temporary insanity," the closest thing to the "bastard had it coming" defense that Texas law recognizes. But instead, she muddied the waters by advancing a separate, totally unbelievable theory that she had hit him accidentally, while attempting to damage his car (a theory which, even if believed, probably would have made her guilty of felony murder). It is technically possible to both be criminally insane and not to have committed the alleged act while insane, but that combination seems pretty far-fetched, and probably alienated the jury needlessly.

Enter every peacenik's favorite Marine, Stephen Funk. This is the guy who joined the Marines, went AWOL, and now wants to be discharged as a conscientious objector. Apparently, Funk himself realizes how silly it sounds that someone who thinks all war is immoral would join the Marines, expecting to travel to distant lands, pat happy campers on the heads, and never engage in any hostilities (or even participate in drills that involve shouting the word "kill"). So now, he's come out (pun intended) with another theory for his release: he's gay, and by revealing this, he has violated the "don't ask, don't tell" policy. Uh-huh. I wonder what his next theory will be. Flat feet, anyone?

UPDATE: If all else fails, Mr. Funk could always try streaking.

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