Arguments in the alternative
Lawyers often talk about ‘arguments in the alternative’. It is one of those useful bits of jargon that, as well as being a handy shorthand, reveals a way of thinking about a case.
An argument in the alternative is one in the form: A is true, but if A is not true then B is true. This is not nearly as complicated as it sounds. For example:
My dismissal was unfair, because I was dismissed as a result of making a protected disclosure. This was an automatically unfair reason for dismissing me.
But, if I was not dismissed for making a protected disclosure, my dismissal was still unfair, because I nothing I had done justified being dismissed.
The claimant’s first argument is that the reason for her dismissal is automatically unfair. If she succeeds in this submission she will win the case. But, if she does not, she has a second argument, that the dismissal lay outside the range of reasonable responses. This is the argument in the alternative. If she wins on the first point it will be unnecessary, but the alternative needs to be put forward, in case the first argument fails.
The structure and concept of arguments in the alternative is useful. It is helpful to identify what your main case is, and what you say if it does not succeed.
There are a few traps to avoid.
Firstly, often you will be making a number of arguments about the same facts. For example, that a termination was both unfair dismissal and also an act of discrimination. This is not an argument in the alternative. You are not saying that the dismissal was unfair, but if it wasn’t then it was discrimination. The argument is that the act was both unfair dismissal and discrimination.
Secondly, there are good arguments in the alternative and bad ones. Sometimes this is clear cut. The criminal who says “I wasn’t there. And if I was there, it wasn’t me who shot him. And if I did shoot him, it was self defence” is not going to be believed. If you are giving evidence, and you know what happened, that is what you must say. It is extremely damaging to try to offer several inconsistent accounts.
A similar point is the danger of making too many points and detracting from your best ones. In many cases, it is more sensible to focus on a few strong points, rather than offering endless arguments in the alternative. This is often a difficult judgement to make. A useful approach is to ask yourself “If I lose arguments A, B and C, is there a real possibility I might win the case on argument D?”. If there is it is worth arguing. If, by the time you have failed with arguments A, B and C, there is no real chance that D will succeed, it is probably better to focus on convincing the tribunal of A, B and C.
