Appellate Law

The Appellate Judge?s Unshared Opinion

By D. Todd Smith

In today’s On Appeal column, Law.com’s Howard Bashman discusses those instances in which an appellate judge, rather than writing a separate concurring opinion, merely issues a short statement to the effect that he or she concurs in the result.  While somewhat rare, Texas appellate justices occasionally engage in this practice.

Bashman concludes:

A judge who cares enough to note his or her disagreement with the majority’s approach should dignify the case with at least a brief explanation of the reason for that disagreement.  And if he or she cannot supply such an explanation, then perhaps he or she should simply join in the majority opinion.

It’s hard to find fault with this conclusion.  Really, what purpose does “concurring in the result” serve, other than to tell the public that the writer just didn’t want to join the majority opinion?  Without some explanation, the reasons for that decision are a mystery to the parties and other litigants with potentially affected cases.  If the majority opinion has a defect in reasoning or if the law is vulnerable to change in a way the parties haven’t emphasized, please tell us so we can better do our job as advocates.

Full post as published by Texas Appellate Law Blog on February 19, 2008 (boomark / email).