Without naming it outright, yesterday I introduced “Kettle Logic.”

This is the term that Jacques Derrida – who came up with the famous line “form is content” (or some such in his native French) and many other concepts of deconstructionism – uses to describe the situation of throwing together a stew of contradictory logical claims.

Kettle Logic for lawyers is when they throw a bunch of contradictory claims or defenses into the pot and make an unpalatable goulash hoping they might be able to prevent a fact finder from figuring out the truth and with it their clients’  liability.

The example provided by Wikipedia on how Kettle Logic got its name is from a reference by Derrida to one of Sigmund Freud’s whacky dream stories about how a man was accused by his neighbor of having returned a kettle in a damaged condition.

As an important frolic and detour, an issue spotting lawyer might just jump in right here to label these neighbors as bailor and bailee. This lawyer might then seek to determine who was the one benefiting from the bailment – i.e. lending or presentment from the bailor to the bailee of the black kettle.

This is because the law gets so specific as to determine different standards of care if the person benefiting because of the bailment was the bailor or the bailee.

To reflect on this bailment point for longer, we are likely to assume that the kettle benefited the bailee perhaps because the bailee for a time had greater cooking capacity.

However, it could have also been the case that the bailor benefited perhaps in the situation that the kettle came available a few days before a family member’s birthday and the bailor wanted it stored to allow it to be a surprise.

Though a side point, if you think like a lawyer you will see doing a neighborly “favor” as a liability. That’s something to “stew on.” (Sorry.)

Returning to the whole point, the bailee offering defenses might come back with the following three provided by that Wikipedia entry … plus a couple more which I offer for good sport:

  1. The bailee had returned the kettle undamaged;
  2. The kettle was already damaged when he borrowed it;
  3. The bailee had never borrowed the kettle in the first place;
  4. The kettle was not the bailor’s kettle;
  5. The bailee did not have legal responsibility over another person who damaged the kettle; and if able to get away without sanction for a patently false claim …
  6. The kettle was not being returned but presented as a gift to the claimant.

Wow? What a mess. It seems what is happening here is that the bailee is creating defenses which will force the accuser to dig in to prove the facts.

All these defenses require that the bailor claimant prove:

  1. The kettle is the bailor’s kettle – i.e. the bailor has title to it.
  2. The bailor’s kettle was entrusted to the bailee.
  3. The bailee received the kettle in good condition (as opposed to the bad condition now claimed to be that of a damaged condition).
  4. The good condition of the kettle was reduced at some point while in the bailee’s possession to a damaged condition.
  5. The bad condition of the kettle occurred because of the bailee defendant’s failed a duty to maintain the kettle in a good condition – regardless if someone else damaged it.
  6. The bailor is actually kicking a gift horse in the mouth … the ingrate!

Even if you take off the final claim and required proof as being too over the top, the point is clear. Offering defenses tests the claimants’ ability to prove their claim.

But this fails to explain why anyone would want to waste their time with alternative – i.e. contradictory – pleadings as the claimant.

Cynically we might rush to suggest the reason to make alternative claims is to create a nice big bog for the lawyers to wade into and start up a muddy war for which you and your neighbors are both going to pay the price. Right?

True, often that attorney who helped you do your will or your aunt’s divorce a few years ago doesn’t know what they are doing and they are going to just attempting to sling it.

But that is not the whole story …

More charitably to other members of the legal guild, the reason is because additional facts might come in during discovery which helps clarify that an alternative claim is correct whereas the others are not.

Alternative Pleading – AKA “Pleading in the Alternative” – basically provides the greatest latitude for claimants to honor their requirement of giving notice to the opposing party as to what the heck they are suing the other over while at the same time being able to later fashion the most proper claim.  

Think of it this way, the exchange of Complaint and Answer is the first (official) foray of a legal skirmish in which claims and counter claims are exchanged in what can then become a long, long legal process.

It is the legal process itself which usually provides clarity as opposed to greater opaqueness in the legal “fog of war.”

Wouldn’t it be nice though if you could “get a bird’s eye view” of the conflict early on so you don’t waste your time getting into “a war you can not win”.

Better yet, isn’t it great when you can dispassionately identify to your neighbors that the boundary dispute will be “a war they can not win” so they should just holster their six-shooters right now so nobody gets needlessly hurt?

Problem is there are no “can not win wars” in the law. Or at least there are no attorneys who will identify that situation for fear they will be seen as having made a guarantee.

Yet if you at least want help handicapping your case, it is worth having a conversation with lawyers who knows how to assess the lay of the land – i.e. Justice Smiles.

If this sounds like you  and you are a Washington State resident, take a moment for this initial assessment [HERE].

BTW – If you feel compelled to see the entry on Wikipedia, you will find it [HERE].