Thank You for Writing Dissents
By Steve Klepper (Twitter: @MDAppeal)
At this year’s bar convention, I took the opportunity to thank Senior Judge Irma Raker for something she did 12 years ago. When I lost the first Court of Appeals case that I argued, Judge Raker wrote a short solo dissent. It meant a lot to me as a young associate, having entered argument feeling like I would win, to know I’d convinced at least one judge.
There are a many different reasons why appellate judges write dissents or refrain from writing them. From a private practitioner’s standpoint, I tell judges that dissents are a powerful way to improve attorney-client relationships.
When clients lose appeals unanimously, the clients will often wonder if the problem was that their lawyer’s brief and argument didn’t do a good job of making their point. It’s an entirely different conversation when there is a dissent. The dissent signals to the client that the lawyer’s work was effective enough to convince at least one judge, but that the judge was unable to convince a majority of the panel.
There are many reasons why a judge who disagrees with the majority may decide against writing a dissent. Dissents can take too much time on a high-volume court like the Court of Special Appeals—or on a court with a deadline for issuing its opinions, like the Court of Appeals each summer. There is some potential cost for collegiality, particularly on the Court of Special Appeals, where a dissent dramatically increases the odds of certiorari review by the Court of Appeals. These factors may help explain why there are dissents in less than 1% of Court of Special Appeals opinions.
But a dissent need not be time-consuming or a flag for further review. In a recent Court of Special Appeals unreported decision, Senior Judge Lynne A. Battaglia, sitting by designation, penned a three-sentence partial dissent from a 35-page opinion affirming a conviction:
I join the majority opinion on four of the five issues. With respect to the fourth issue, however, the failure to instruct the jury on the elements of the offense of use of a firearm in the commission of a felony or crime of violence, I dissent. I conclude that the court’s error in this regard constitutes plain error and requires reversal of appellant’s conviction on that offense.
I suspect many would question the value of such a brief dissent in an unreported opinion, but I’d love to see more such dissents. They take little time and do not detract from the majority opinion, all the while giving the attorney on the losing side a key vote of confidence that their efforts were enough to convince at least one judge.