mardi 9 décembre 2014

Moot Court - How to write a dissenting opinion?

To the Moot Court judges.

In English judgments, a judge who disagrees with the majority may give a dissenting opinion.

Sometimes a dissenting opinion will actually be the basis for the appeal judges' decision. Thus, in Candler v Crane, Christmas & Co [1951] 2 KB 164, Lord Denning 's reasoning , which was dissenting in the Court of appeal, was later followed in the House of Lords.

Dissenting opinions are one expression of democracy. They also are a safeguard for judges' independance. 

Lord Kerr of Tonaghmore, in the Birkenhead Lecture (8 October 2012) gave a speech supporting the existing tradition of drafting dissenting opinions:

"In my firm opinion (and I would say this, of course) the existence of contrary views and their enunciation in dissenting judgments do not inevitably detract from the authority of the opinion of the
majority. On the contrary, where the majority has been required to address and deal with challenges to their reasoning, their judgments should be the more cogent and compelling as a consequence. After all, arguments which underlie minority opinions do not disappear simply because they have not been

expressed in dissenting judgments. " (for full speech, click here.)

Yet, how to write a dissenting opinion? Here are a few tips you should remember when drafting your own dissenting opinion.

  • Only write a dissenting opinion if you actually disagree with the legal reasoning of the majority. 
  • Do not attack your colleagues in your opinion. It will only weaken the decision, and it may isolate you from the judiciary/ your friends. The strength of a dissenting opinion is to state another way of hearing the case, following your own reasoning. You do not necessarily need to quote the majority opinion.
  • Be clear. You need only state the facts again if you disagree in the way they were stated before. Go straight to the point in your reasoning. A dissenting opinion's purpose is also to persuade those who disagree with you, so be persuasive.
  • Make sure you have reached a clearcut conclusion. After reading your opinion, why you disagree and what you disagree about must be two things the reader will remember.

Further readings: