Breakout 5: Concur and Dissent: When Great Minds Don’t Think Alike

DESCRIPTION:  Concurring and dissenting opinions can play a unique role in appellate decisions, from the U.S. Supreme Court to state appellate courts.  Practitioners and courts will often cite to concurring and dissenting opinions to seeking a change or modification in the law, to encourage legislative action, as persuasive authority, to highlight discrepancies in the law that should be addressed, and to lay the groundwork for an opinion that is not currently before the court but that could be addressed in a future appeal.   Appellate jurists have to make difficult decisions during a collaborative decision-making process whether to chart a separate course from their colleagues and write a dissent or concurrence.

This panel will discuss how federal and state appellate practitioners can use concurrences  and dissents to their benefit and to help shape the law and how, when, and why an appellate justice or judge should consider writing a concurrence or dissent, including how to disagree without being disagreeable.

LEARNING OBJECTIVES:

• Learn the distinctions and similarities between concurrences and dissents.
• Gain an understanding of when concurrences and dissents can most effectively be used by practitioners to strengthen arguments on appeal;
• Gain an understanding of when and why a judge or justice should write a concurrence or dissent.
• Gain insight on how concurrences and dissents shape the law.

Our panel will discuss best practices for why, when, and how appellate jurists should write a concurrence or dissent and how practitioners can best use concurrences and dissents to their benefit.

Hon. Theodora Gaitas, Justice, Minnesota Supreme Court (Moderator)

Justice Theodora Gaïtas was appointed to the Minnesota Supreme Court in August 2024 by Governor Tim Walz.  Previously, she served as a judge of the Minnesota Court of Appeals from 2020 to 2024, where she co-chaired the Tribal Court State Court Forum and that court’s Equal Justice Committee.  Justice Gaïtas also served as a district court judge in the Fourth Judicial District (Hennepin County) from 2018 to 2020.

Before her appointment to the bench, Justice Gaïtas was a partner at small law firm, representing plaintiffs in medical malpractice cases.  For the majority of her career, however, she served as a public defender, initially working as a trial-level public defender, and then spending fifteen years as an attorney with Minnesota Appellate Public Defender’s Office.  As an attorney, Justice Gaïtas served as a member of the Minnesota Supreme Court’s Advisory Committees for the Rules of Evidence, the Rules of Civil Appellate Procedure, and the Rules of Criminal Procedure.  She has taught appellate advocacy and criminal procedure at local law schools.  Judge Gaïtas is a graduate of the University of Minnesota and the University of Minnesota Law School.

Hon. Peter M. Reyes, Jr., Judge, Minnesota Court of Appeals

The Honorable Peter M. Reyes, Jr. is a judge on the Minnesota Court of Appeals.  He previously served as a judicial law clerk for the Honorable Salvador M. Rosas, an associate at Robins Kaplan, a senior Intellectual Property lawyer at Cargill, Incorporated and a partner at Barnes & Thornburg LLP.

Judge Reyes is an active past and present member of numerous local, state, and national, and international bar associations and nonprofit organizations.  He served as president of the Minnesota Hispanic Bar Association (MHBA), on the Board of Trustees for Mitchell-Hamline College of Law, and national president of the Hispanic National Bar Association (HNBA).  Judge Reyes is active in the American Bar Association (ABA) as a member of the House of Delegates representing the HNBA.  He served on the Commission on Hispanic Legal Rights and Responsibilities, the Council for Diversity in the Educational Pipeline, the Commission on Women in the Profession, and currently on the Rule of Law Initiative.  He currently serves as Chair of the Judicial Division’s Ethics & Professionalism Committee and Chair of the House of Delegates’ Resolution Impact Committee.  Judge Reyes serves on the Board of the American Bar Foundation (ABF) and as Chair of the ABF Fellows Research Advisory Council.  He serves as president of the Executive Council for the Minnesota Historical Society.  Judge Reyes is the president of the U.S. National Committee of the International Association of Lawyers (UIA).

Among his recognitions, Poder Magazine named him as one of the “100 Most Influential Hispanics in America” in 2012 and 2013.  Judge Reyes received the Ohtli Award in 2016, the highest award given out by the Mexican government to a non-Mexican citizen.  He received the “HNBA Latino Judge of the Year Award” in 2018, the “MHBA Courage in Leadership Award” in 2019, the ABA “Spirit of Excellence Award” in 2019, and the “UIA National Committee of the Year” award in 2022.

Judge Reyes received his undergraduate degree in Chemistry from the University of St. Thomas and his law degree from Mitchell-Hamline College of Law, graduating with Honors.

Mark Bradford, Partner, Bradford Andresen Norrie & Camarotto

Mark Bradford is an accomplished appellate attorney and commercial litigator. He has argued more than 100 appeals in state and federal courts in Minnesota, Iowa, and Wisconsin, and regularly consults clients at all stages of the appellate process.  

Mark also tries cases. He has tried 15 cases to jury verdict, including high-stakes commercial matters—winning all of them. 

Mark’s blend of trial and appellate expertise has earned him recognition in The Best Lawyers in America in both Commercial Litigation and Appellate Practice each year since 2019, and a place on the Minnesota Super Lawyers “Top 100” list since 2018. He was named a “Top Lawyer” by Minnesota Monthly in Commercial Litigation and Appellate Law in 2022. 

Mark is a Fellow of both the American Academy of Appellate Attorneys and the American Board of Trial Advocates. Beginning in 2013, the Minnesota Supreme Court appointed Mark to serve on the Advisory Committee on the Rules of Civil Appellate Procedure. Mark is also a contributing author of the Eighth Circuit Appellate Practice Manual. For the past 12 years, he has taught appellate advocacy at the University of St. Thomas Law School. In 2022, the school awarded Mark the Dean’s Award for Outstanding Teaching. 

Mark also devotes a substantial amount of time to pro bono matters. He has been involved with the Innocence Project for many years, including winning post-conviction relief following a two-week evidentiary hearing for a client wrongly convicted of second-degree murder. In 2022, the Great Northern Innocence Project recognized Mark as its volunteer of the year. 

Hon. Linda Bell, Nevada Supreme Court (Moderator)

Justice Linda Marie Bell was elected to the Nevada Supreme Court, November 2022. Previously, she sat for fourteen years in the civil/criminal divisions of the Eighth Judicial District Court. In 2019, her peers elected her the court’s Chief Judge where she was responsible for overseeing the operation of the largest, most varied and active court in Nevada. During her tenure, she managed the unprecedented challenges of the pandemic, developing and implementing a COVID-19 trial plan to allow jury trials to move forward safely when many other courts remained closed. She was a driving force in establishing the court’s Veteran’s Treatment Court and worked to implement the Gambling Diversion Treatment Court, the only one of its kind in the country.

Before coming to the bench, she spent seven years in the non-capital post-conviction unit of the Federal Public Defender handling complex post-conviction cases. Justice Bell was a public defender for five years in Clark County, handling felony criminal trial cases, and previously had a private practice in the areas of medical malpractice and family law for three years. She clerked for the Honorable Sally Loehrer (8th JD) after having been admitted to the Nevada Bar in October in 1993.

Justice Bell was a 2019 recipient of the Clark County Law Foundation Liberty Bell Award, the 2021 recipient of the Southern Nevada Women Attorney’s annual Miriam Shearing Award, and the 2022 recipient of the NCJFCJ Impact of the Year Award. Justice Bell served as Chair of the National Conference of State Trial Judges and served for two years as Chair of the ABA Judicial Division Ethics and Professional Responsibility Committee. Justice Bell is a past president of Nevada District Judges Association. Justice Bell taught criminal law and criminal procedure at the University of Nevada, Las Vegas from 2011 until 2022.