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Don’t Forget About Dicta

A recent northern California federal court case has reminded us that even a court opinion that completely rules against one party can still be mined for quotes that benefit the losing party. Those quotes can often be found in the opinion “dicta.” For those who don’t know, dicta is the plural form of dictum, which is basically language in a court’s opinion that is not part of the court’s actual ruling. Black’s Law Dictionary, 10th ed., defines dictum as such:

obiter dictum (ob-i-tər dik-təm) [Latin “something said in passing”] (18c) A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).  Often shortened to “dictum” or, less commonly, “obiter”. Pl. obiter dicta.

“Strictly speaking an “obiter dictum” is a remark made or opinion expressed by a judge, in his decision upon a cause, ‘by the way’that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion. In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as “dicta” or “obiter dicta,” these two terms being used interchangeably.” William M. Lile et al., Brief Making and the Use of Law Books 304 (Roger W. Cooley & Charles Lesley Ames eds., 3d ed. 1914).

The above-referenced matter, Otico v. Hawaiian Airlines, Inc., No. 16-cv-02557 (N.D. Cal. Jan. 9, 2017) is a labor law case that deals with the issue of whether or not the plaintiff should have been compensated for her time spent in a pre-employment training program before she was even hired. The court ruled, in its order on summary judgment, that the plaintiff was not entitled to compensation for the training program because “no reasonable juror could conclude Otico was acting as an ’employee’ when she took her training courses at Hawaiian Airlines.” The judge hammered this point home by saying that Hawaiian Airlines was “not using the participants in its training program as anything close to ’employees.'”

However, the judge was not finished. Seemingly thinking out loud, the judge closes out a paragraph with, “Although one wonders why Hawaiian is unwilling to pay something to these people, since they no doubt must sacrifice to participate in the program, the law does not require it to do so.” Emphasis added. He then goes on to categorically reject the plaintiff’s legal arguments some more before granting summary judgment to Hawaiian Airlines.

So there it is. Embedded within five pages of a thoroughly convincing legal shutdown of the plaintiff’s arguments is a quote that is irrelevant to the legal issue at hand and clearly resulting from the judge’s own personal opinion. However, the quote is completely relevant to the argument that Otico should be making to the public.

In law school we’re not taught to ignore dictum necessarily, but we are taught to only rely on it as a last resort. That is because, as you can see in Black’s definition, dictum is not precedential. It is at best persuasive. So if you are a lawyer writing a brief or arguing orally before a judge, you’re going to want more in your arsenal than just dicta, which the judge will not be bound by.

That is not necessarily the case when communicating with the general public. The average person likely does not know the difference between dicta and the actual holding in a case, so quoting dicta can be just as effective as quoting a ruling. If the plaintiff were to release a statement that included the following, “even the judge felt that Hawaiian Airlines should be paying trainees for their time spent in the pre-employment training programs,” it would not be false or even misleading. The judge, though bound by the law, clearly implied that he felt that Hawaiian Airlines should be paying something to these trainees to compensate them for their sacrifice. For what other reason would he include that quote?

The fact is, judges are human beings with personal feelings and opinions wholly separate from their legal analyses, and often, they cannot help but let those personal feelings find their way into legal opinions. Lawyers and communicators need to keep a sharp eye out for language that, while legally useless, can become a powerful message to the public.

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