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February 17, 2023

Dissents and Concurrences

By: Richard Schickele

The panel was introduced by Judge James Lockemy (South Carolina Court of Appeals). Judge Andrew D. Hurwitz (U.S. Court of Appeals for the Ninth Circuit) moderated a panel consisting of Judge Ann Scott Timmer (Arizona Supreme Court), Judge Christopher McFadden (Georgia Court of Appeals) and Mark A. Kressel, Esq. (Horvitz & Levy LLP, Los Angeles).

Judge Hurwitz introduced the session by asking us to think about dissents and concurrences in an organized manner. He noted that if you are writing a dissent or a concurrence, you have lost – you didn’t get the votes. This raises questions of when, why, and how you write and also for whom are you writing.

He then listed eight possible reasons or audiences. (1) The legislature. The separate opinion may encourage legislative action to correct or limit the scope of the majority opinion. (2) History. For example, Justice Harlan’s dissent in Plessy v. Ferguson set a mark for future jurists to consider. (3) As a matter of principle. Justices Brennan and Marshal consistently dissented in death penalty cases. (4) To limit the scope of the majority opinion. A possible reason for Justice Gorsuch/Kavanaugh’s concurrence in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022)? (5) Addressing another court. This could be a plea by a judge on, say, an intermediate appellate court for a higher court to take the case, a proposal to a lower court on how to navigate the majority opinion on remand, or a suggestion to other courts (state or federal) on how to address an issue. (6). The parties. The separate opinion might reassure the losing parties that their position was valid (even if they did not prevail) and to support their request for review in a higher court, or it might caution prevailing parties as to limitations on their victory. (7) For the profession and/or academia. To encourage scholarship to further develop the arguments for possible presentation in future litigation. (8) For those who appoint judges. Judge Hurwitz noted that the list is neither exhaustive nor exclusive and that a separate opinion may have several reasons and audiences.

The panelists offered their own reasons, several, but not all, of which reflected Judge Hurwitz’s introduction.

Judge Timmer explained that when she wrote separately, she either hoped to encourage a colleague to change his or her position or to limit the damage inflicted by the majority opinion. She thought that the internal exchanges between the majority and a dissent often produce more focused opinions. Sometimes a separate opinion throws out a marker to encourage an issue to be raised in the future.

Judge McFadden commented that dissents on an intermediate court of appeals are often letters to the supreme court. They should explain with clarity and force why the majority is wrong. He noted that he has never written a dissent without some hope that it would persuade someone.

Attorney Kressel described being the beneficiary of a dissent as agony and ecstasy. You lost, but you may be able to use the dissent to support seeking review in a higher court or to manage proceedings on a remand. Sometimes a separate opinion may encourage a client to seek legislation. A separate opinion can cut both ways, in some instances encouraging settlement, but sometimes encouraging the losing party to dig in.

Following the panelists’ opening thoughts, Judge Hurwitz offered several discussion prompts. He began by asking whether a judge should keep quiet if he or she disagrees with the majority. Judge Timmer indicated that she would usually say something although she might be more reticent where the case is resolved in an unpublished decision. Judge McFadden suggested that the rule ought to be, does the majority follow the law and get the right result. If not, he will dissent or separately concur, even in an unpublished decision.

Judge Hurwitz asked Attorney Kressel how he approached oral argument before what is perceived as a split panel. He responded that the first line of attack is to try to discern and persuade a second vote. If that fails, he seeks to shore up the dissent.

The panelists agreed that a separate opinion should not be nasty. Judge Timmer thought that a judge should always adopt a professional tone: if you want to be respected, be respectful. She suggested that a judge should be careful with the choice of words so as not to unnecessarily offend colleagues or detract from the essence of the opinion. She commented that when she is concerned with language in a potential opinion in her court, she “walks down the hall” to her colleague and asks whether the language is fair. In such instances, her colleagues almost always revise the language. Judge McFadden commented that he sometimes relies on the staff attorneys to “talk him down.” He noted that he could not remember an instance where he was offended by his colleagues’ language in a final opinion.

Judge Hurwitz suggested that sometimes a judge might not want to draw attention to questionable language. Attorney Kressel commented that a separate opinion that is critical of the majority or accuses the majority of something untoward is not helpful. It is difficult to explain to the client and may lead to a feeling of injustice without a remedy. However, he felt that it was helpful for a court to note attorney misconduct but sometimes frustrating if that misconduct is held to be harmless.

The panel generally agreed that a dissent or concurrence with no explanation is of questionable value. Attorney Kressel suggested that it leaves the attorneys scratching their heads, particularly on interlocutory matters that require further litigation. Judge McFadden stated that on reflection, he sees little value in the practice. Judge Timmer commented that a conclusory dissent might be reasonable where a judge wanted to signal that she would not have granted the discretionary relief set forth in the majority’s opinion, particularly where similar requests for discretionary relief are likely to be presented to the court in the future.

Judge Hurwitz asked whether there should be more separate opinions. Attorney Kressel thought judges should “keep up the good work” or even write more as dissents and concurrences to help develop the law and, on occasion, promote settlement. However, he has not found dissents particularly helpful in seeking rehearing or review by a higher court. He might include a reference to the dissent in the first draft, but it often gets edited out of the final submission, unless the goal – and his client’s goal – is to change the law.

However, everyone agreed that changes in memberships of supreme courts may make citations to prior dissents more persuasive.

Judge Hurwitz questioned whether an attorney should cite a judge’s prior statements. Judge McFadden agreed that he did not like attorneys going out of the way to cite his prior statements, particularly when they were not really germane to the argument. Judge Timmer agreed with Judge Hurwitz that it makes a difference who on the lower court wrote a dissent and that Arizona Supreme Court justices tend to know the court of appeals’ judges.

As a final question, Judge Hurwitz asked what happens when a judge conditionally concurs, and the author refuses to make the concession. Judge Timmer responded that her colleagues almost always made the adjustment, particularly when it something non-critical like removing the identity of a witness. Judge McFadden stated that his colleagues had always acceded to such conditions.

Judge Hurwitz concluded the session by noting good humorously that all these suggestions probably don’t apply to the Justices on the United States Supreme Court.

Overall, the session suggests that dissents and concurrences are not written frivolously or out of pique, but that most appellate judges take measures to avoid writing separate opinions and that when they do write separately, they usually have a specific purpose or particular audience in mind. Discerning this intent will allow attorneys to determine whether and how the dissent can be used to their clients’ benefit.

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Richard Schickele

United States Court of Appeals for the Ninth Circuit

Richard Schickele is a career law clerk with Judge Consuelo Callahan on the United States Court of Appeals for the Ninth Circuit. He previously served as counsel with the United States Supreme Court and with the California Commission on Judicial Performance.