What is Dicta in Law?
How to Tell the Difference Between the Holding and Dicta in a Judicial Opinion
In an earlier article, we discussed the doctrine of stare decisis and the importance of past judicial decisions as binding authority on current and future litigation. If you are still getting familiar with the importance of judicial precedents in the law, start with that page.
This article explains one of the primary reasons that lawyers will argue or courts decide that a specific judicial opinion does not apply to the present case: dicta.
As the United States Supreme Court has said, for a past case to tell us anything helpful about resolving a current one, you “need to distinguish an opinion’s holding from its dicta.” Otherwise, stare decisis does not apply.
Courts, however, rarely label dicta or holdings in their opinions. Indeed, we have never read an opinion that provides such clarity.
Further, appellate court judges sometimes disagree about whether parts of past decisions are binding holdings or dicta. This uncertainty adds to the confusion.
So, continue reading to learn how to tell what part of the decision counts as its holding and precedent and which is non-binding dicta. Whether you want stare decisis to apply your lawsuit or need to weaken your opponent’s argument that precedent supports its position, this distinction matters.
If you need help with a personal injury, motor vehicle accident, or workers compensation case, complete this form or call (804) 251-1620 to see if we are a good fit.
Dicta Meaning
Dicta is the abbreviated form of the Latin phrase obiter dictum, meaning “that which is said in passing.“
In law, dicta in a past case refers to the part of that judicial opinion that is “not essential” to deciding that case.
What is the Significance of Finding Part of a Judicial Opinion to be Dicta?
Dicta is not a source of binding authority in American law.
A court may consider parts of a past opinion considered dicta; however, it will not control the court’s judgments in later lawsuits.
In contrast, the holding from a higher court or the same tribunal binds the court’s decisions in later cases.
How Do You Tell If It is Dicta or the Holding?
Distinguishing dicta from a holding with precedential value is challenging.
First, a court may consider any subject matter discussed, observed, or commented on in a past judicial opinion as dicta if the current court finds the past court did not need those findings or remarks to resolve the case. Indeed, hypothetical questions raised, facts mentioned, caselaw discussed, or criticism of past opinions may be dicta.
Furthermore, as previously mentioned, judges often have differing views over whether language from past opinions should be considered holdings that carry controlling weight or dicta to disregard. So, even if you feel confident in your argument, the judge (or judges if one party appeals the lower court’s ruling) deciding your case may disagree.
That said, here are a few clues that part of a decision is dicta, not a holding:
-
- Dissenting opinion: Some judgments include dissenting opinions. These types of views count as dicta.
-
- Not thoroughly debated: Judicial remarks on issues the parties did not raise at trial or in the pleadings, fully argue, or debate typically count as dicta.
-
- Can be omitted without changing the decision: One test for dicta is whether you could delete the particular statement from the judicial opinion without changing the court’s analysis and conclusion.
In addition, researching other caselaw about the issues in your case can help you determine if courts have followed the statement in question as having precedential value or ignored it. If ignored, that part of the opinion is likely dicta.
Can I Use Dicta if It Does Not Have Precedential Value?
Yes.
Dicta in past decisions often has value in current cases.
For example, dicta, particularly dissenting opinions, may later serve as the basis for the majority opinion.
This shift happened recently in workers compensation law. Commissioner Marshall’s dissenting opinions saying that employers and insurers should have to pay for permanent impairment evaluations have become the majority holding with precedential value.
Even if you do not convince the court to change its mind entirely, arguing dicta when you do not have a binding precedent that supports your position can help you distinguish other cases or cause a slight shift in the common law that results in a win.
- Appellate Decision Shows the Risk of Ignoring VWC Orders - February 12, 2025
- How Long Does It Take to Get to Your Disability Hearing? - February 11, 2025
- Skip Bayless, Fox Sports Exec Accused of Sexual Misconduct - January 6, 2025
