July 18, 2013

A reason to read the separate opinions

There are various reasons for an appellate judge to write a separate opinion, whether it be a dissent or a concurrence. (See Judge Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (1995) 62 U. Chi. L. Rev. 1371, 1412-1415.) Justice Corrigan’s concurrence in today’s People v. Smith decision illustrates one use of the separate opinion: sending a message to future petition for review writers by putting a target on an earlier Supreme Court opinion.

The Smith majority concludes that one crime was a lesser included offense of another crime. In doing so, the court relies in part on a portion of its opinion in People v. Barrick (1982) 33 Cal.3d 115. Justice Corrigan is not a Barrick fan. In her concurring opinion today, joined by Justice Baxter, Justice Corrigan calls Barrick “ill reasoned and lack[ing] [in] persuasive force” and says it “represents an unreasoned departure from otherwise settled precedent.” If that were not a sufficient hint to counsel on how to get the Supreme Court’s attention in the next similar case, she adds, “because neither party has urged us to overrule Barrick on that point, the question must await another day.”

Note to counsel on the wrong side of the next Court of Appeal opinion that raises the same lesser-included-offense issue: just slap a white cover on Justice Corrigan’s concurring opinion and file it as your petition for review. You know you’ll have at least two votes. (Exaggeration alert: follow all the petition for review format rules, not the slightly hyperbolic advice just stated.) General note to all counsel: remember to read the separate opinions in those appellate decisions that are relevant to your case.

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