How to deal with dissenting opinions in LWR brief? Forum

[PhoenicianMonk]

Writing LWR appellate brief. There is a case whose majority opinion I am construing pretty narrowly, as the general holding (ruling against my side) doesn't really help me... so, I'm considering one of the issues in the majority opinion that DOES support my side. I'm writing a full Rule Explanation paragraph on this. However, there is also a great dissenting opinion for that case, that I would like to adopt for policy reasons for my argument.

I feel that it's awkward to do a completely new Rule Explanation-type paragraph for the dissenting opinion immediately after doing a paragraph on the majority opinion... so, I think an explanatory parenthetical might be the best way to address it. I don't know the best signifier to use... See also, But see...

Not sure if this made any sense. Thanks for any help on the best way to address both the majority and dissenting opinion in writing a brief.

[YourCaptain]

How closely related (issue wise) are the dissent and the majority? Has that dissent been cited at all?

[PhoenicianMonk]

It's a very recent case; there have been no citing references whatsoever in case law. It's an area of the law that's influx in this jurisdiction.

The dissent and majority talk about the same issues, but the majority weighed the "totality of circumstances" differently and the decision came out against my side.

The dissent, obviously, is more supportive of my side... but, it introduced and advocated a new "test" for the issue, which is what I want to adopt in my brief for policy reasons. Not sure how to go about logistically addressing this new "test" from the dissent, while still doing the majority.

[Renzo]

Is it a controlling case for the purposes of your memo? If not, you can just say they got it wrong, and they dissent was right. If, however, it is controlling, you will have a very hard time arguing for the court to adopt a test it already rejected.

[squ1rtle]

Just introduce it and cite it as a dissenting opinion. Don't treat what it says as hard law but as an alternative method. Don't spend too much time trying to pointing it out as a dissenting opinion. You will come off as being too defensive. IMO.

For example. It has been suggested that <introduce dissenting test> <cite as dissent>. <Rule in action-- if any> <Apply test to facts.>

[zomginternets]

I think it might be a little awkward to say both that the majority opinion is distinguishable and that the dissenting opinion got it right. By distinguishing, you are saying "the majority is right, but it doesn't apply here". By advocating the position of the dissenting opinion, you're saying "the majority got it wrong, this is how the facts/law should have been weighed." I would go with one or the other.

If it's an important case, ditch the dissenting opinion and just distinguish the majority opinion; if it's unimportant, ditch the majority opinion and say why the dissenting opinion got it right. For the latter, it might help to try to find other sources that back up the policy that you say the dissenting opinion does well, to make your argument more credible.