Making Use Of Dissenting Opinions

I. Introduction

Perhaps every appellate practitioner can relate to the experience of finding a perfect on-point quote while conducting research only to discover the quote is from a dissenting opinion. But don't disregard that quote just yet. As this article will explore, dissenting opinions are a useful tool for appellate lawyers, and mastering the art of incorporating dissenting opinions into your briefs and oral arguments is a worthwhile endeavor. After all, judges put great effort into crafting dissenting opinions, so those opinions should not be disregarded in appellate advocacy.

A dissenting opinion represents what one-or often more than one-judge thinks the law should mean, but what is the purpose of a dissent? The late Second Circuit Judge William Hughes Mulligan is said to have remarked that a "primary purpose of a dissent is, of course, to annoy the majority."¹ But within a dissenting opinion's critical language of the majority are helpful insights that