Alternative pleading is a form of pleading that allows a party to allege two or more claims which are inconsistent with each other. Alternative pleading is fundamental to the United States court system.
During a lawsuit, pleading occurs before the evidence gathering process of discovery. As a result, a plaintiff may not know exactly which theory of recovery the evidence most supports. Because defects in the pleadings can result in dismissal of the lawsuit, alternative pleading exists to prevent plaintiff’s from losing viable causes of action in scenarios where it is unclear what evidence discovery will uncover.
For example, a plaintiff in a car accident may not know during the pleading stage whether the defendant ran into the plaintiff intentionally or by mistake. To ensure the plaintiff can recover what they are entitled to, alternative pleading allows them to plead the inconsistent claims that defendant committed the intentional (and not negligent) tort of battery and that the defendant was negligent.
Both the plaintiff and defendant may plead in the alternative.
In Federal court, Rule 8(d) of the Federal Rules of Civil Procedure allows for alternative pleading.
[Last updated in June of 2022 by the Wex Definitions Team]