Commentary: Kramer vs... The bar of alternative arguments

A lawyer walks up to a bar -

I'll have a martini with two olives, shaken not stirred. But, pauses the lawyer, if you don't think I really deserve two olives, make it with one olive. And, if you don't believe it would be prudent to shake the martini, stirring would be fine.

As the bartender shakes his head and turns toward the vodka, the barrister interrupts yet again. Of course, if you are not inclined to provide a martini, perhaps I could just get a beer instead.

At this point, the bartender halts his preparation and, reflecting on this intricate set of options, wonders whether this fellow has already had too much to drink.

He's not drunk. In fact, he's perfectly sober and at the height of intellectual acuity. If he seems a bit odd, it's because he's been frequenting a very different type of bar ... as a lawyer arguing in the alternative.

While politicians are often chastised for talking out of both sides of their mouths, lawyers have made inconsistent, alternative arguments a way of life. Uncertain of the best path to victory, we hedge our bets, propose alternatives, keep our options open, and hope that no one will mind our irreconcilable and contradictory positions.

Inconsistency in pleading one's case is so commonplace that it is formally embodied in the rules of court. Far from prohibiting the deliberate waffling of lawyers, the federal rules and most state laws actually invite litigants to state as many separate claims or defenses as the party has regardless of consistency.

Even the United States Supreme Court, in Cleveland v. Policy Management Systems Corp., has observed that inconsistency in the theory of the claims is of the sort normally tolerated by our legal system. Rather than force litigants to adopt a consistent position before filing suit, [o]ur ordinary Rules recognize that a person may not be sure in advance upon which legal theory she will succeed. Since we may not have all the answers at the start of a lawsuit, our legal system allows us to sue first and ask questions later.

The need for flexibility is understandable when we have yet to uncover all of the evidence, but can be dangerous in the hands of lawyers who don't know when to quit proposing alternatives and when to pick the best one. Though the law lets lawyers make inconsistent arguments, when the shouting is over, a jury's verdict must be unanimous. This lesson was learned the hard way by a defendant whose lawyer marched to the jury box while righteously proclaiming that there is absolutely no proof that my client embezzled any of these funds! And, besides, he gave it all to charity.

Jurors gave his client the alternative of a long prison sentence.

Irwin R. Kramer makes inconsistent, alternative and sometimes brilliant arguments for a living - as a trial lawyer and managing partner of Kramer & Connolly, an AV-rated litigation firm representing businesses and individuals throughout Maryland and Washington, D.C. A former professor of evidence and trial procedure, Kramer offers crash courses on a variety of legal subjects at www.KramersLaw.com. ? 2003 by Irwin R. Kramer. All rights reserved.

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