The Art of Dissent

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Explore:  Legal Writing

One panel at the 2013 Appellate Judges Education Institute Summit focused on dissenting opinions: reasons to write them, their role and possible impact, and the preservation of court collegiality when dissenting. Moderated by Ninth Circuit Judge Margaret McKeown, the panel featured jurists who represent a range of tendencies to write separately: Judge James Wynn of the U.S. Court of Appeals, Fourth Cir-cuit (separate opinion rate of approximately 30 percent), Justice Goodwin Liu of the California Supreme Court (separate opinion rate of ap-proximately 20 percent in two years on the court), and Justice Eileen Moore of the Califor-nia Court of Appeal, Fourth Appellate District, Division Three (ten dissents and partial dissents in over twenty years on the court).

Why dissent?

The panelists described seven reasons to dissent: legal correction, principle and posterity, letter to another court, letter to the legislature, development of the law, message to losing par-ty, and damage control (i.e., "this court's ruling is effective for this day only and this case only"). Justice Moore, who expressed a strong prefer-ence for unanimity in decisions in order to pro-vide solid guidance for those governed by the court’s rulings, added some nuances to these reasons, including: sending a message to the legislature or a higher court to change the cur-rent legal rule; sending a message to the losing party that, even though the party lost, the un-fairness of the result is still acknowledged; and planting a seed to change the law later.

Originally published in Appellate Issues - WWW.AMBAR.ORG/AJCCAL - January 2014 - Winter Edition.

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Topics:  Legal Writing

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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