Pleadings Inconsistent Allegations

McCormick v. Kopmann

P had been drinking at D Hull’s bar McCormick v. Kopmann Agreed Factual Background D P

Count I Theory Count IV Theory P D P D Plaintiff D-Barkeep Loses D-Driver Loses

Are There Situations In Which P Ought to Lose Against Both Ds? P sober & crossed center line P drunk & crossed center line but got drunk somewhere else Jury finds evidence balanced (BOP) D P

Why Permit Inconsistent Pleading? What advantages? Avoid inconsistent verdicts Save Time Letting jury reach merits What disadvantages? Jury may forget NOTA option Jury may forget BOP Seems “dishonest”

Could P Still File Both Counts If: P was alive but brain damaged? P alive and tells you I was sober as a judge (although I did have 7 scotches) I was on the right side (although there are witnesses who disagree) Why is this okay? What should you do if P then tells you, “But I don’t want to sue Huls. They didn’t do anything wrong.”

What Does P Do at Trial? Suppose P decides to file both counts: What does P do when called to the stand and asked Were you sober? What side of the road were you on?

The Effect of Pleadings A pleading can be used To bind the party As evidence against the party To impeach the party’s testimony How does one avoid these effects? Alternative pleading: “In the alternative to Count I, P alleges...” Hypothetical pleading: “If P was on the wrong side of the road (which P denies), then...”

Alternative vs. Hypothetical Alternative: If P has no basis for choosing one over the other. (Dead, brain damaged, or fact outside P’s knowledge) Hypothetical: If P believes one count but recognizes jury could disagree. (Conflicting witnesses or evidence)