Questioning the Balance Between Dicta and Holding
When I was getting ready for law school, my dean sent out a suggested reading list. "To Kill a Mockingbird" still sits on my shelf when it's not being loaned out to new lawyers (note: read it; don't just see the movie). "One L" is on the shelf, too.
For those of you who did not receive the same suggestion to buy a copy before you started law school, "One L" tells the semifictional story of the author's first year at Harvard Law School. In it, Scott Turow relates a scenario many of us are familiar with: the Socratic method of discussing cases in class. When it was my turn, Socratic case discussion was also the first time I was faced with a common question: "I know that is what the court said, but is that what the court held?"
Silly me, I thought I could read judicial opinions like I read everything else—as a whole, not parsing out whether the court meant what it said in one paragraph rather than the next. The idea of dicta, to me, was always hard to accept.
The Line Between Holding and Dicta
Unsurprisingly, the conceptual line between dicta and holding in judicial decisions was, and is, a matter of debate. Why else would it take up so much space in law school? Originating from the Latin for "something said in passing," obiter dictum is defined as a "judicial comment made during the course of delivering a judicial decision, but one that is unnecessary to the decision in the case and therefore not precedential," per Black's Law Dictionary.
Simply put, unless it relates to the merits of the question presented, it's not binding, as in Commonwealth v. Tilghman, 543 Pa. 578, 585-586, 673 A.2d 898, 902 (1996), in which the court held that in every case, what is actually decided is the law applicable to the particular facts; all other conclusions are but obiter dictum.
The Howard Decision
This, of course, makes last fall's per curiam Pennsylvania Supreme Court decision in Howard v. A.W. Chesterton, 78 A.3d 605 (Pa. 2013), all the more curious.
In Howard, a toxic tort case, the Supreme Court began by informing the reader that the case was "being resolved upon mutual consent among the parties, who agree that the order of the Superior Court should be reversed." Thus, under Pennsylvania law, the rest of the per curiam opinion is arguably, and perhaps by definition, dicta, as in Tulewicz v. Southeastern Pennsylvania Transportation Authority, 529 Pa. 588, 592-594, 606 A.2d 427, 429 (1992), in which the court held that a court's comments on an issue not raised or argued by either party before the court are dicta.
Nevertheless, the Supreme Court did not stop at the resolution of the case by the parties, but instead accepted the invitation of the defendants "to reaffirm several governing principles deriving from prior cases." The specifics of the Howard decision are of great interest to toxic tort lawyers, but to summarize for this article, the Supreme Court proceeded to reiterate several general principles it had stated in prior decisions regarding the quantum of evidence necessary to state a claim in an asbestos action.
Although Howard was identified as being per curiam, Justice Debra M. Todd nevertheless filed a concurring statement that reads more like a dissent. In particular, she took the rest of the court to task for issuing an opinion without anything at stake for the litigants.
"The court's well-meaning attempt to 'accommodate' appellants' request to reaffirm several precepts is to little avail in the end," Todd said. "As these statements are dicta, courts, including this one, are under no obligation to follow such dictates." She was citing U.S. Bancorp Mortgage v. Bonner Mall Partnership, 513 U.S. 18, 24 (1994), in which the court said "this seems to us a prime occasion for invoking our customary refusal to be bound by dicta, and our customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion."
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.
Wading through the holding-dicta distinction and weighing the value of the authorities upon which you rely can be difficult, but always holds value to the litigant willing to make the effort. If nothing else, critical analysis of authority will crystallize your thinking on the issues at play in your case, increasing the effectiveness of your advocacy. It also stands to boost your credibility with the court and give it what it needs to move from deflecting your authority as dicta to actively considering your authority as really good dicta that should not be ignored.
Jay Evans is a member of Obermayer Rebmann Maxwell & Hippel's litigation department, and is regularly involved in client counseling as well as trial and appellate work. His experience encompasses many complex subject matters, including products liability and toxic tort, trade secrets and restrictive covenants, securities litigation, contract, real estate, insurance disputes and antitrust and trade regulation.