Don’t Cite Dicta

Don’t cite dicta.

In legal writing, precision matters. Judges, clerks, and opposing counsel read briefs not just for persuasion, but for accuracy and credibility. One of the fastest ways to undermine both is by citing dicta as if it were binding law.

Dicta—short for obiter dicta—refers to statements in a judicial opinion that are not necessary to the court’s holding. They may be thoughtful, instructive, or even persuasive, but they are not the law. Treating dicta as controlling authority is a mistake that can weaken an argument and damage an advocate’s credibility. Citing dicta also provides your opposing counsel with an easy (and great) argument that you are wrong.

At its core, legal precedent rests on holdings, not musings. A holding answers the precise legal question before the court and forms the basis for the judgment. Dicta, by contrast, often addresses hypothetical scenarios, future concerns, broader observations, or even facts that go beyond what the case actually decided. While dicta can provide insight into a court’s thinking, it does not carry the same precedential weight.

Why does this distinction matter so much? First, courts are acutely aware of it. Judges know their own precedent and quickly recognize when a cited passage did not drive the outcome of the case. When a brief relies heavily—or exclusively—on dicta, it signals either a misunderstanding of the law or an attempt to stretch authority beyond its limits. Neither impression helps your client.

Second, citing dicta can expose the weakness of your position. If the strongest language supporting your argument comes from a footnote, a hypothetical, or an aside, that may suggest that binding authority is not on your side. Opposing counsel will seize on this, pointing out that your “key case” never actually decided the issue at hand. What might have seemed like persuasive rhetoric can quickly become a liability.

That does not mean dicta is always useless. Dicta can play a supporting role, particularly when binding authority is sparse or unsettled. It may illustrate how a court is likely to approach a question or signal the direction of future rulings. But dicta should be labeled honestly and used carefully—as persuasive commentary, not controlling law. Transparency matters. Courts appreciate candor, even when the law is not perfectly aligned with your argument.

There is also an ethical dimension. Lawyers have a duty of candor to the tribunal. While citing dicta is not inherently unethical, presenting it as a holding—or failing to acknowledge its limited status—can cross a line. Accuracy in citation is part of professional responsibility, not just good advocacy.

Ultimately, effective legal writing is about trust. When a court trusts that your citations accurately reflect what the law actually says, your arguments carry more weight. Avoiding the misuse of dicta is a small but critical part of maintaining that trust. The best advocates know the difference—and make sure the court does too.