It’s Just Dicta – A little legal analysis for whistleblowers

dictaArmchair legal analysis can be irresistible to whistleblowers.  Why fight the impulse?  Whistleblowers should be highly educated about their potential case.  Some surf the Internet to all hours of the night, and all of a sudden, they find a legal opinion that supports their point.  Those finds can be exhiliarating and validating for the whistleblower.  Just be aware that a common error in legal analysis is the misuse of dicta.  Before you trumpet your finding to any and all that will listen, be aware that the little gem of information you found may not be helpful to your cause because “it’s just dicta.”

The term “dicta” refers to written opinions of a judge that do not embody the resolution or determination of the specific case before the court. Dicta are written expressions in a court’s opinion that go beyond the facts before the court and are individual views of the author of the opinion.  Dicta are not binding in subsequent cases as legal precedent.

“Dicta” is the plural form of dictum, in case you are interested in such things.

I used to be a hearing officer, and through that experience, I became intimately familiar with the way attorneys deal with dicta and holdings.  Before I was an attorney, I didn’t entirely grasp what was going on when someone would say, “It’s just dicta.”  I’ve learned that this is a way of dismissing a particular citation as not sufficiently authoritative.  In my practice now, I occasionally come across a well-meaning whistleblower who carefully reads a court case and triumphantly announces that she has found legal support for a challenging claim or legal position.  Sometimes this bit of information proves to be very, very helpful.  Sometimes, though, the whistleblower has just found some dicta.

Dicta, in argument, are often discussed as conforming to or contrasting from the holding of a case.  The term “holding” refers to the legal principle derived from a judicial decision. The holding is the part of the written opinion of a court in which the law is specifically applied to the facts of the specific  controversy before it, in other words, the “instant” case. The holding is relied upon when courts use the case as an established precedent in a subsequent case.

Laymen confuse the holding and dicta.  Sometimes, lawyers do too. Sometimes, lawyers blur them intentionally.

I used to preside over administrative hearings, and those areas of law can be very sloppy.  In that particular area of law, one could literally find an appeals panel opinion to support almost any position one wanted to take in a particular case.  When I would take the trouble to read the original opinion cited by one of the attorneys, it was not unusual to find that some dictum was taken completely out of context.  The holding of the case was not relevant, in conformity with the dictum, or contrary to the dictum.  After seeing so many instances of non-conforming dictum being improperly presented to support a contrary holding, I started requiring counsel to provide me with hard copies of any cases cited.  I found the practice of misinterpreting dicta was rampant.

Through my practice of routinely comparing dicta cited to case holdings, I learned that many attorneys simply messed up.  They would do a computer search for an odd topic, and the legal research service would duly spit out a list of cases.  The attorneys took the highlighted quotes and stuck them in a memo.  The memo went to the hearing officer.  Not the greatest way to approach legal analysis, but it’s understandable.

Whistleblowers don’t usually have legal research engines; they frequently happen upon a case during an Internet search.   Cases on the Internet are put there for a whole lot of reasons, many of which have nothing to do with the desire to accurately reflect the state of the law on a particular subject.  On the contrary, many cases are put onto mainstream Internet sites precisely because they are weird or startling or just plain wrong.  Whistleblowers who want to delve into doing their own legal analysis should keep in mind that the pool of cases to which they have access through the Internet is flawed.  Lots of mainstream Internet cases are, to put it bluntly, legal pigs.  It’s going to be tough for counsel to make some of those pigs fly.  A qui tam case needs something better.

I am abundantly sympathetic to whistleblowers that often have to fight against attorneys pushing the opposing viewpoint, and I again see how the problems of improper legal analysis arise, and yes, those problems are completely understandable.  Too often though, I have seen a whistleblower risk a lot for a skewed interpretation of some written remark in a legal opinion.  Try to keep in mind – your little gem may only be dicta.  Get some decent legal advice.

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