Also known as: alternative arguments · argue in the alternative · argument in the alternative · in the alternative
Written by attorneys · grounded in primary & secondary sources — see below
A secondary or backup argument that a party advances on the assumption that its primary position may fail. The argument concedes the possibility that the main contention is incorrect yet still seeks relief or a favorable outcome under an alternative theory.
LuxBay faces three parties each claiming the same $40,000 held in its payment system. LuxBay files an interpleader action naming all three claimants while expressly denying that it owes the fund to any of them. The court accepts the pleading because the stakeholder may assert its right to relief in the alternative by both invoking interpleader and preserving its defenses.
Maker signs a note directing payment to either of two named payees or to both jointly. When the holder presents the instrument, the bank honors it because the instruction validly designates the payees in the alternative. The maker later argues that the note is unenforceable, but the court finds the alternative designation satisfies the statutory definition of an order.
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A nonprofit corporation challenges a spending restriction. It first argues that the statute is invalid as applied to nonprofits receiving only de minimis corporate donations. When that position meets resistance, the corporation advances the alternative argument that the statute is facially unconstitutional because it chills protected speech across the board.
The prosecution offers a jury instruction on intent. The defense first contends that the instruction creates an unconstitutional mandatory presumption. When the court appears unpersuaded, the defense argues in the alternative that even a permissive inference would be improper on these facts because the evidence of intent is too thin.
A state defends a 24-hour waiting period for abortions. It first claims the delay reduces the total number of procedures. When that rationale draws skepticism, the state argues in the alternative that the delay ensures the woman's decision is informed and thoughtful.
A motel operator challenges a federal antidiscrimination statute. It first asserts that Congress lacks power under the Commerce Clause because the motel serves only local guests. When that argument falters, the operator argues in the alternative that the statute violates the Fifth Amendment by taking property without just compensation.
A party may plead claims or defenses in the alternative when the facts support multiple theories. The rules expressly permit a plaintiff to assert rights to relief jointly, severally, or in the alternative arising from the same transaction or occurrence.
No. Courts treat alternative arguments as independent positions. A party does not concede the weakness of its main argument merely by offering a fallback theory.
Supporting sources
An alternative argument assumes the primary position may fail and offers a separate ground for relief. A conditional argument explicitly ties the second position to the failure of the first and does not stand alone.
Supporting sources
Yes. The Model Penal Code and common practice allow inconsistent statements or defenses when they are presented in the alternative. The prosecution must still prove its case beyond a reasonable doubt on each theory.
…must reject the notion that a woman is less capable of deciding matters of gravity. Cf. Reed v. Reed , 404 U. S. 71 (1971). In the alternative, the delay requirement may be premised on the belief that the decision to terminate a pregnancy is presumptively wrong. This premise is illegitimate. Those who disagree vehemently about the…