Appellate Insights

Your opponent may try to marginalize favorable language in a court decision that you rely on by calling it “dicta.”  That begs the question: what is the dividing line between a case’s holding and dicta?  A few rules can guide your analysis:

• Dicta consists of observations and statements unnecessary to the appellate court’s resolution of the case.

• In contrast, a court’s statements are not dicta when they respond to the issues raised on appeal and are intended to guide the parties and the lower court in resolving the matter following remand.

• If the court bases its result on two alternative rationales, neither is dicta.

 The practical message:  To determine whether a court’s statements in an opinion are dicta, consider whether its ultimate holding is based on those statements.