The Overlooked Power of the Concurrence While attorneys typically anchor their motions and briefs to the binding holding of a majority opinion, they often treat concurring opinions as mere academic musings or judicial clutter. This is a missed tactical opportunity. In complex litigation, a majority opinion may provide a broad ruling, but the accompanying concurrences frequently map out specific, narrower pathways for relief that remain entirely consistent with the majority but offer greater flexibility for your specific facts. If you are struggling to fit your case squarely within a rigid majority rule, the concurring opinion may provide the analytical bridge you need. ## Identifying the 'Narrower Path' The most effective way to use a concurrence is to analyze whether the concurring justice or judge agreed with the result but rejected the majority’s over-broad reasoning. When you find a case with a splintered bench, pay close attention to the concurring language. These opinions often reveal: * Unresolved tensions: Concurrences often flag where a majority rule might lead to absurd results in future, factually distinct cases. * Alternative frameworks: A concurring opinion might suggest applying a different test or a different level of scrutiny that better aligns with your client’s situation. * Limits on application: Concurring justices frequently define where they believe the majority's holding should stop, effectively creating a 'safe harbor' for your specific set of facts. When drafting, you can argue that your case sits within the heart of the concurrence’s logic, thereby avoiding the most restrictive aspects of the majority’s broader mandate. ## Strategies for Integrating Concurrences into Briefing To use these opinions effectively without losing credibility, you must be precise. Avoid citing a concurrence as 'the law' of the jurisdiction; instead, frame it as an analytical framework that provides the correct application of the law to the facts at hand. Here is a step-by-step approach to incorporating this research: * The 'Consistency Check': First, ensure the concurrence does not actually contradict the majority holding. You must be able to argue that your position is supported by the majority’s result while utilizing the narrower, more favorable reasoning of the concurrence. * The 'Footnote Strategy': Use the concurrence to explain why a broad reading of the majority’s opinion is inappropriate. For example: 'While the majority focused on [X], the concurring opinion correctly observed that the rule should be cabined by [Y], which applies directly to the present matter.' * Targeted Quoting: Quote the concurring judge’s specific concerns about over-breadth. This shows the court that you are not trying to circumvent precedent, but are instead advocating for a principled, narrow application of it. ## Pitfalls to Avoid While concurrences are potent tools, they are not a silver bullet. You must avoid these common errors: * Misrepresenting Precedent: Never argue that a concurrence is a 'dissenting view' or 'minority rule' if the judge signed the majority opinion. You are highlighting their specific reasoning, not challenging the binding nature of the majority’s holding. * Excessive Reliance: If your entire argument rests on a concurring opinion while ignoring the majority, you will lose the judge. Use the majority as your baseline and the concurrence as your guide for nuance. * Neglecting the Procedural Posture: Always ensure the concurrence you are citing is relevant to the same procedural posture. A concurrence in a summary judgment ruling may not be persuasive in the context of an evidentiary motion at trial. ## Moving Beyond the 'Holdings-Only' Mindset Mastering the use of concurrences shifts your research from a search for 'favorable hits' to a practice of 'analytical navigation.' By treating concurring opinions as legitimate legal architecture rather than supplementary commentary, you provide the court with the necessary intellectual tools to rule in your client’s favor without requiring a departure from established precedent. The next time you find a landmark case that seems to block your path, read the concurrences. You may find that the logic required to win your case is already sitting there, written by a judge who foresaw exactly the problem you are facing today.
Note: This article is provided for general informational purposes only and does not constitute legal advice. Always verify authority independently and consult a qualified attorney for advice on a specific legal question.
Start researching smarter
OpisJuris gives you free search across U.S. cases, statutes, regulations, and court rules — plus an AI research assistant grounded only in real authority. See plans and sign up →