Inconsistent Pleadings


One of the more fun aspects of the American legal system is that we allow inconsistent pleadings. The prototypical example given of such pleadings is the hypothetical case of the leant teakettle. Imagine a case in which the plaintiff is alledged to have leant a teakettle to the defendant. He claims that the teakettle was returned with a large crack in the base, rendering it useless. He therefore is suing for damages. Under our rules of civil procedure, the defendant could, in theory, make three arguments simultaneously for why he is not liable: 1. He never borrowed the teakettle from the plaintiff. 2. The teakettle was damaged when he borrowed it. And 3. The teakettle was in perfect condition when he returned it. Obviously any one of these three, if true, would exonerate him, and he is free to make all three arguments at once. That is, at trial he can present evidence to bolster all three claims, and if the jury finds one of them more likely to be true than not (though obviously it cannot find more than one to be true) the defendant gets off.

Despite being the prototypical example, it is imprecise. It sacrifices realism in order to make a point. Were an actual judge confronted with this case, he would likely take defendant's counsel aside and tell them in no uncertain terms to pick one argument and stick to it. While you're allowed to make inconsistent pleadings, it's somewhat frowned upon unless you have a legitimate reason. Moreover, it's just poor strategy in the case above. Juries would probably be inclined, when faced with that set of pleas, to assume the defendant's just a big liar. They wouldn't listen to his evidence, probably wouldn't keep it straight considering that evidence for one argument neccessarily contradicts the other argument, and are far more likely to return a verdict for plaintiff than if the defendant had just picked one argument and stuck with it.

Inconsistent pleadings can be useful, however, when the party making them legitimately doesn't know which is accurate. Consider the actual case of McCormick v. Kopmann. McCormick was dead: to begin with. There is no doubt whatever about that. He died in a car accident, shortly after leaving a tavern owned by Kopmann. Conveniently for purposes of filing lawsuits, he died when his car crashed into a truck driven by the very same Kopmann who owned the tavern. Suit was brought against Kopmann by his widow, on two counts. The first was that Kopmann was driving on the wrong side of the road. He was therefore negligent, and thus liable to McCormick in tort. The second was that Kopmann's tavern had sold him too much alcohol and allowed him to drive home drunk, and therefore was liable for accidents incurred while driving, since they had behaved negligently in not securing safe transportation home for him.

Superficially there does not seem to be anything inherently contradictory about these two pleadings. Ah, but there is. You see, in torts, contributory negligence is a complete bar to recovery. Thus, it doesn't matter how negligent defendant was in harming plaintiff. If plaintiff was in the slightest bit negligent himself, he can't collect a penny. Drunk driving, as you can imagine, is negligent behavior. So: If Mr. McCormick was not drunk, he could collect under the first count, since he was not contributorily negligent, but not under the second, because Kopmann's tavern could not have been negligent, since he wasn't drunk. If he was drunk, he could collect on the second count, since the tavern was negligent, but not the first, since his driving drunk made him contributorily negligent, and therefore bars him from recovering for Kopmann's negligent driving.

These inconsistent pleadings were allowed on appeal, on grounds that plaintiff legitimately did not know which one to be true. In the teakettle case, the hypothetical Defendant knows exactly the state of things, knows two (if not three) of his arguments are false, and is pleading in bad faith. Judges won't allow that. But here, owing to the fact that Mr. McCormick is dead, his wife doesn't know whether he was drunk or not. Since either of the two scenarios are plausible and plaintiff can't be sure which is true, the court allows her to make both arguments at trial and see if the jury buys one of them.

And that's all I have to say about inconsistent pleadings. Ta-da!



One of the irritating features of law school readings is that they aren't really concerned with who ultimately won the case, just with who won whatever point was being appealed. Let me look it up and see if I can find out...

Nope. No record. Now the procedural posture for the case was that the defendant motioned for dismissal before the trial. The trial judge refused and defendant appealed. So this all happened before there was even a trial. The defendant only made one appeal; after he got turned down once he didn't pursue it any further. Without knowing any more about what happened, my intuition says this case didn't go to trial. They lost on one appeal and the landscape for the trial didn't look very promising, since plaintiff had multiple avenues for winning. My guess is that Kopmann decided to cut his losses and settle. The fact that there's no recorded subsequent history for this case, and they don't record out-of-court settlements in the official record, makes this seem likely.

Another reason the case probably settled: In Tort cases, if the defendant can't get the case thrown out by a judge on a point of law, and if it seems certain the trial is going to go through to the end and rest on a jury verdict, defendant has a very strong incentive to settle. This is because the average jury is much, much more sympathetic than the average judge, and this makes a big difference in Tort cases. The nightmare scenario, and I have no idea how accurate it is, is that the Widow McCormick gets on the stand and bawls about her lost husband, and from that point on it doesn't matter how unpersuasive the evidence is, Kopmann is paying and paying big. In general, juries are much more sympathetic to tort plaintiffs than tort defendants, since you've got an egregiously injured party squaring off against some callous, negligent injurer.

Now don't shed too many tears for the tort defendants (or tortfeasors, as they are technically known). Getting to trial is a pretty high bar for plaintiff to clear, because there are a lot of mechanisms for a plaintiff to get a judge to throw a case out or award summary judgment before it reaches a jury. Judges, who know how juries can be, tend to be more than willing to balance the jury's sympathies by being particularly harsh on plaintiffs. This includes throwing cases out because "no reasonable jury could decide the facts in plaintiff's favor, so we won't even send it to one." Or, my favorite, the judgment-not-withstanding-the-verdict, wherein a jury finds for the plaintiff, then the judge steps in and says "No reasonable jury could have found defendant negligent, but our jury wasn't reasonable. Therefore, I have chosen to ignore the jury and am entering a verdict for defendant."

This has pretty much always been the case, but in recent years (the last half-century or so) judges have relaxed the restrictions that keep cases away from juries somewhat. Now it's in somewhat of a balance, but as late as the 1940s trying to sue someone in Tort was a fool's errand, since your grounds for recovery were so severely limited.

Wow, this entry brings to mind a particularly infamous policy debator from San Dieguito High (whom we all despised, of course). He loved running his affirmative case as a set of 4 different and usually unrelated (although sometimes mutually exclusive) cases. He reasoned that he was justified in doing this because each of the cases affirmed the resolution and nothing in the rules barred him from arguing more than one case at a time. He also reasoned that as long as the judge found one of his cases convincing, then he should win the round. Judges ate this up as a very innovative way to view the resolution. We often spent the debate round arguing over why this is unfair rather than the actual merits of the case(s). I still think that's the way to go rather than play his little game. So now I wonder if knowing the history/background of inconsistent pleadings would have helped. I think it would take a rather crafty debator to devise 4 different plans, none of which are inconsistent with at least one of the others. Anyways, the fact that judges often welcomed his kind of reasoning, I think, may be evidence that those who spend too much time in the forensics world have no real view of law or reality. And my post maybe shows I'm at risk of being one of those people :(

Oh yea, and I love when they have the judgment-not-withstanding-the -verdict done on TV shows. I remember an episode of The Practice (which used to be good and then got way too dramatic) where the judge says to the jury, "What the hell? Are you out of your mind?!" or something along those lines...haha. the cases make you read the process and the reasonings, but give no ultimate answer.

Its like the antithesis to NPR's Morning Edition - their tagline is "The News, with context."

Law school is like "The context, but NO NEWS FOR YOU!" school is the Soup Nazi.

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This page contains a single entry by Zach published on September 28, 2005 9:05 PM.

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