Appellate Law

Questioning the Balance Between Dicta and Holding

, The Legal Intelligencer


Jay Evans
Jay Evans

Todd has a point. The Supreme Court's reiteration of principles in Howard without any actual controversy was essentially dicta; arguably, therefore, there was no compelling reason to restate them at all.

Whiteman and 
'Really Good Dicta'

Where does that leave litigants and the trial courts bound to enforce the Supreme Court's holdings, particularly where the Supreme Court has expressed in dicta that it takes its prior holdings seriously? Although no reported decisions have yet to discuss Howard, a recent trial court follow-up to the Howard opinion by Allegheny County Court of Common Pleas Judge Robert J. Colville, Whiteman v. 84 Lumber, G.D. No. 12-020809 (Pa. Com. Pl. Allegh. Cty, Nov. 6, 2013), did attempt to address it.

It's time for a confession. I deliberately left out the end of the definition of obiter dictum above. It ends with "...and therefore not precedential (though it may be considered persuasive)." Dicta can have significant value as persuasive authority, or, to put it as Colville did in Whiteman's oral argument: "It may be dicta, but what if it's really good dicta?"

Colville further refined the question of "really good dicta" in his Whiteman opinion: "Notwithstanding my view that the language in Howard is technically dicta, the language found there is still a remarkably clear expression by five of the seven current justices of the Supreme Court as to what they believe the law should be."

Colville also added that "to the extent that the law is presently unclear on these points, it is well within the discretion of trial court judges to accept the statements of the majority in Howard as highly persuasive authority for analyzing future cases."

In other words, Colville suggested that courts ignore "really good dicta" at their peril. Although the definition of "really good" may be in the eye of the beholder, Colville felt that a per curiam of the sort in Howard is a good example of dicta with value in predicting how a court approaches the issues therein.


So, what can trial and appellate practitioners do with or about good dicta? Colville illustrated one direction a trial court can take, but let me offer a few additional observations for litigants as well.

Although it may serve as a strong compass for the lower courts, Howard will likely remain an outlier, as the Supreme Court will not regularly issue a reiteration of principles in that fashion. However, as dicta exists in every appellate decision, don't be afraid to cite applicable dicta as persuasive authority.

Moreover, take the time to dig into the actual language of the decisions of the cases upon which you rely, and be ready to stand your ground on the distinction between dicta and holding. Further, be prepared to show the court that you have applied critical thinking to the distinction, rather than just relying on electronic research or headnotes—failing to make the required connection, or worse, trying to mask dicta as holding, will hurt your credibility with the court.

Finally, get comfortable with the fact that courts are permitted to, and often will, ignore dicta when reaching a decision, no matter how good you think it is.

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