Argue in the Alternative

Sometimes the best way to organize your points is with an “even if” structure.

Let’s say you are starting to write a brief and you have come up with the list of reasons why your side should prevail.  You know to express these reasons as full thoughts (sentences) that you will turn into headings, each of which will advance your overall argument.  But now you must figure out how to organize them.  Sometimes you may find that one or more lend themselves to an “even if” structure.  As legal writing expert Ross Guberman explains in Point Made: How to Write like the Nation’s Top Advocates (2nd ed. 2014), this is often the case when there is a procedural basis on which you might win, as well as a substantive one.  He describes the “even if” approach as “arguing in the alternative,” and says it should look something like this, with the procedural argument coming before the substantive one:

(1) [We win] because the claim was filed too late.
(2) Even if the claim were timely filed, [we win because we] had no duty.

Guberman also describes the “even if” approach as “Heads I win, tails you lose” and uses the following example from former Attorney General Eric Holder’s motion to dismiss in his defense of Chiquita Banana in a high-profile case where the relatives of missionaries were seeking to hold the company liable for the missionaries’ deaths at the hands of a communist guerilla group that Chiquita Banana had made payments to:

(1) The [Antiterrorism Act] statutory tolling provision does not apply.
(2) There is no equitable tolling under the ATA.
(3) Even if equitable tolling were available under the ATA, plaintiffs do not and cannot allege the “extraordinary circumstances” necessary to invoke the doctrine.

The idea to convey by using this structure, Guberman says, is “No matter what, [we] can’t lose.”

Guberman cites another example of the “arguing in the alternative” organization, this one employed successfully by former Acting Solicitor General Walter Dellinger to drastically reduce a $2.5 billion punitive-damages award against Exxon for its role in the Exxon Valdez oil spill.  In describing Dellinger’s reasoning, Guberman writes, “The Clean Water Act’s provisions [and not the lower court’s determination] concerning damages should govern ….  But even if they don’t, … you should slash those punitives all the same”:

(A) The Clean Water Act establishes federal maritime policy concerning punishment and deterrence of unauthorized discharges and displaces judicial regulation of the same subject.
(B) Even if the CWA leaves room for judicial lawmaking concerning punishment and deterrence of maritime oil spills, the Court should not choose to authorize punitive damages.

Structuring your headings in this fashion is somewhat akin to organizing your argument section dialectically, but instead of completely demolishing the argument against your side, you contend essentially that “even if we lose on that point, we still win on the following basis.”

Here’s another example in the context of an appeal involving a dispute over a series of written agreements:

(1) Judge Martin erred as a matter of law in holding that the September 15, 2015 contract was invalid.
(2) Even if the September 15, 2015 contract is invalid, Judge Martin erred as a matter of law in holding that Crocker had standing to sue under the June 12, 2015 contract.

(A) Bankruptcy law prohibited Crocker from being a party to the June 12, 2015 contract.
(B) The plain language of the June 12, 2015 contract specifies that Crocker is not a party to it.
(C) Because Crocker provided no consideration under the June 12, 2015 contract, it cannot be construed as a valid contract between Crocker and appellant Peninsula Developers, Inc.
(D) In the June 12, 2015 contract, Crocker acknowledged that he was not a party and agreed to its terms, so he cannot attempt to rewrite it now.
(E) Judge Martin’s reasons for finding Crocker had standing do not comply with the express terms of the contract and with bankruptcy and contract law.

(3) Judge Martin’s finding that Peninsula Developers breached the June 12, 2015 is not supported by substantial evidence.

Notice that both (2) and (3) are “even if” arguments. In this case, Crocker had sued Peninsula Developers for allegedly breaching a June 12, 2015 contract between himself and Peninsula and, as a result, making him lose millions in lost profits.  Peninsula contended that the June 12, 2015 agreement was not a contract between Peninsula and Crocker at all but rather, a contract between Peninsula and the trustee for Crocker’s bankrupt estate.  Peninsula took the position that the September 15, 2015 writing constituted the valid contract between Peninsula and Crocker, that Crocker had breached it and as a result, caused financial damage to Peninsula.  The trial court found in favor of Crocker on those questions.

With heading (2), Peninsula is saying essentially that even if the appellate court agrees with the trial court and finds the later agreement invalid, Peninsula still wins because the earlier deal was not a contract with Crocker.  Subsections (A) through (E) explain why this is so.  Then, with heading (3), Peninsula argues that even if the appellate court decides the earlier writing was in fact a valid contract between Peninsula and Crocker, Peninsula still does not owe Crocker anything because it did not breach that agreement.  Peninsula uses the “even if” approach again when addressing damages later in the brief to show that regardless which writing constituted a valid contract between the two parties, Peninsula should not have to pay a cent to Crocker.

When you find yourself in a situation where you may lose on one question, follow Guberman’s advice and see if you can organize your headings in a way that allows you to argue in the alternative, e.g., “Smith does not have standing.  Even if he did, he loses on the merits.”