Red Does Not Mean Stop: Practical Tips for Improving the Accuracy of Your Legal Research
Sep 17, 2014 | Raleigh, NC, United States
Kelly Margolis Dagger
If you use Westlaw or LexisNexis for legal research, you are familiar with the red flag or the stop sign—frequently your first hint that a case has been overruled, reversed, or superseded. If you run a search that brings up a long list of cases, some with the red flag and some without, it might seem reasonable and efficient to simply ignore the red-flag cases. Why would you spend time reading cases that are bad law?
Because of a particular aspect of North Carolina appellate practice, however, your decision to stop on red might cause you to miss binding precedent. In fact, you might end up relying on legal analysis that the North Carolina Supreme Court has already rejected.
This article explains why this might happen—and how to avoid this fate.
Why a Red Flag Might Mean Good Law
When it reverses the decision of the Court of Appeals, the North Carolina Supreme Court can do so simply by adopting the dissenting opinion in the Court of Appeals. The Supreme Court, in fact, takes this approach on a regular basis when it reverses the Court of Appeals in a case with a dissenting opinion from the Court of Appeals.
By way of background, a dissent in the Court of Appeals gives rise to an automatic right to appeal to the North Carolina Supreme Court. N.C. Gen. Stat. § 7A-30(2). In 2013, the Supreme Court issued sixty-three opinions, thirty-five of which disposed of cases before the Court based on a dissent. Of those thirty-five, the Supreme Court reversed in whole or in part in eleven cases. In six of the eleven cases, the Court issued one-sentence per curiam opinions reversing for the reasons stated in the dissenting opinion in the Court of Appeals.
The practice of relying on dissenting opinions from an intermediate appellate court is not unique to North Carolina, but the effect of such reliance varies across states. Some state supreme courts have recognized that, given that they are free to adopt any reasoning for their opinions, they can of course rely on the reasoning of a dissenting opinion in an intermediate appellate court. E.g., Commonwealth v. D.M., 695 A.2d 770, 775 n.1 (Pa. 1997). When a state supreme court adopts a dissent by analyzing the dissent in a signed opinion, it is easy to understand that the court intends its opinion to have precedential value. Courts, however, have struggled to determine the precedential weight, if any, that should be accorded to an opinion that simply adopts a dissent in a per curiam opinion without further comment.
Some courts have held that a per curiam decision without any opinion is not binding precedent. E.g., Dep’t of Legal Affairs v. Dist. Ct. App., 5th Dist., 434 So. 2d 310, 312 (Fla. 1983); see also Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009) (holding that per curiam decision does not become precedential merely because it cites binding precedent). It is not clear, though, what constitutes an opinion; it may be that a simple reference to an opinion below is an opinion of the state supreme court. See, e.g., DeFrain v. State Farm Mut. Auto. Ins. Co., 817 N.W.2d 504, 510-11 (Mich. 2012) (holding that express adoption of dissenting opinion of intermediate appellate court created binding precedent); Commonwealth v. Tilghman, 673 A.2d 898, 903-04 (Pa. 1996) (suggesting that when highest court affirms per curiam intermediate court’s opinion, rather than result, opinion below acquires force of supreme court precedent).
In some states, even where a per curiam disposition is accompanied by an opinion, the precedential effect of the opinion is unclear. See, e.g., Nelson v. Nelson, 189 N.W.2d 413, 416 (Minn. 1971) (noting that fact that opinion was per curiam “in no way diminishe[d] its effect” but merely indicated that the case was “without significant precedential value”). Still other states consider per curiam opinions binding precedent while recognizing that new issues of law, or changes in the current law, should be addressed by full-length published opinions. See, e.g., Walker v. Doe, 558 S.E.2d 290, 296 n.16 (W. Va. 2001).
In North Carolina, “[p]er curiam decisions stand upon the same footing as those in which fuller citations of authorities are made and more extended opinions are written.” Bigham v. Foor, 201 N.C. 14, 14, 154 S.E. 548, 549 (1931). When the Supreme Court summarily reverses on the basis of a dissent, the Court adopts the dissenting judge’s analysis of the dispositive issues “for precedential purposes.” N.C. Dep’t of Envt’l & Natural Res. v. Carroll, 358 N.C. 649, 665, 599 S.E.2d 888, 898 (2004).
The key takeaway: A per curiam opinion reversing for the reasons stated in the dissent in the Court of Appeals elevates the dissent to North Carolina Supreme Court precedent.
Can the Adoption of a Dissent Overrule Supreme Court Precedent?
The North Carolina Supreme Court has not expressly considered whether it is proper to overrule prior precedent by adopting a dissent. The Court of Appeals, however, has implicitly recognized that the Supreme Court may modify its precedents by adopting a dissent.
For example, in Orr v. Calvert, 212 N.C. App. 254, 713 S.E.2d 39 (2011), Judge Robert N. Hunter dissented and expressed his disagreement with a Supreme Court case that established the elements of a prima facie case of constructive fraud. Id. at 269, 713 S.E.2d at 49 (Hunter, J., dissenting). The Supreme Court reversed for the reasons stated in Judge Hunter’s dissent. Orr v. Calvert, 365 N.C. 320, 320, 720 S.E.2d 387, 387 (2011) (per curiam). The Court of Appeals has since relied on Judge Hunter’s dissent, rather than the earlier Supreme Court case, for the elements of the prima facie case of constructive fraud. See Gerringer v. Pfaff, No. COA12-785, 2013 WL 601106, at *2-3 (N.C. Ct. App. Feb. 19, 2013) (unpublished).
Ensuring Your Research Does Not Stop With Red Flags
Returning to the numbers above, the Supreme Court issued six new precedential opinions in 2013 simply by reference to a dissent below. Because the decision of the Court of Appeals was necessarily reversed in each case, those dissenting opinions appear only behind red flags.
Therefore, six controlling decisions of North Carolina law issued in 2013 will, in Westlaw or LexisNexis, show red flags.
Worse, although your substantive search terms will turn up the relevant red-flag cases, those terms will probably not find a Supreme Court opinion that simply reads, “For the reasons stated in the dissenting opinion, the decision of the Court of Appeals is reversed.”
Lawyers in North Carolina need to account for this phenomenon in their legal research practices. Here are some steps to do so:
1. Along with your substantive search terms, use a filter to identify cases with dissenting opinions. In general, I use this filter when I want to identify dissenting opinions by author. Since every dissenting opinion in the North Carolina Court of Appeals should contain the word “judge,” however, you can also use this filter to capture all cases with dissenting opinions regardless of author. This is how your search should look if you are seeking cases with dissenting opinions that contain the phrase “breach of contract”: In Westlaw or WestlawNext: “breach of contract” & DIS(judge)In LexisNexis: “breach of contract” & DISSENTBY(judge).
2. Carefully scan the results list for red-flagged decisions of the Court of Appeals.
3. Before you leave the results list, click the red flag next to each case, rather than the case itself. That click should take you directly to the procedural history, where you can see whether there is direct negative history.
4. If the procedural history shows that the North Carolina Supreme Court has reversed the red-flag opinion, click on the Supreme Court opinion on the procedural history page.
5. Quickly scan the Supreme Court opinion to determine whether the Court summarily reversed on the basis of the dissent or through a full-length opinion. If the Court reversed on the basis of the dissent, you will know that you need to focus on that dissent. If the Court issued its own opinion, you can devote your attention to that opinion, which is likely captured by your substantive search terms anyway.
Because the Supreme Court frequently creates binding precedent that is hidden in red-flag Court of Appeals cases, ignoring those cases is risky, not efficient. By following these steps before you delve into every red-flag result, you may be able to reduce the number of dissenting opinions you need to examine in detail. Once you have identified the significant dissenting opinions, you can continue your usual legal research process with greater confidence that your results are complete and accurate.
*This article originally appeared in the Summer 2014 issue of Per Curiam, a newsletter published by the Appellate Practice Section of the North Carolina Bar Association.