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Just about every young lawyer working on a difficult research project will eventually say it. After scouring various databases looking for something useful to support an argument, the diligent attorney will announce: “I’ve found some good language.” Young lawyers who say that to me are treated (or subjected, depending on the attorney) to a lecture on the difference between a holding and obiter dicta. The language of a judicial decision alone is not binding. “A decision is not even authority except upon the point actually passed upon by the court and directly involved in the case,” the California Supreme Court declared in its 1860 opinion in Hart v. Burnett, 15 Cal. 530. “But even then, the mere reasoning of the court is not authority. The point decided by the court, and which the reasoning illustrates and explains, constitutes a judicial precedent.” Recognizing the difference between a holding and what a court “says on the way” (a rough translation of obiter dicta) to a decision will help attorneys craft better arguments and make better use of authority. Doing so will also improve the state of the law. Electronic publishing and the Internet have vastly increased the amount of readily available cases, particularly unpublished opinions that are now routinely cited by lawyers and even courts. This explosion of case authority has resulted in more citation and quoting of cases but less analysis of them. Since just about any proposition can be supported with language from some case, answering legal questions with any clarity has become more difficult. The common law system would be better off if lawyers and judges recalled some of what they were taught about case authority in law school. Here is a short refresher. A holding is what a court does, not what a court says. It is the result that a court reaches based on the particular facts before it. A holding is not a quotable quote from a judicial decision. A court’s explanation for its ruling is called ratio decidendi, which is Latin for “reason for the decision.” The distinction between a court’s articulated “rule” and its holding is that the rule may not apply in all factual situations. Obiter dicta, by contrast, are those statements by a court that are not necessary for the court to reach its result. These statements do not have to be followed by other courts. They are only persuasive, resting solely on the inherent credibility of any judicial statement along with the logical force (or lack thereof) of the statement itself. “[T]he language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts,” the California Supreme Court said in Brown v. Kelly Broadcasting Co., 48 Cal.3d 711 (1989). While a lower court must follow the holding of a higher court when presented with the same factual situation, no court is required to follow another court’s statement in an opinion when the statement was not necessary to a holding. Conversely, courts are required to follow statements in statutes because the Legislature has the power to write laws, as opposed to the power of courts to decide cases. The sloppy use of quotable statements from case law is eroding these distinctions. A growing carelessness in the use of case authority means that judicial statements unnecessary to deciding cases are becoming a growing source of authority when such statements should not be considered authoritative at all. Coupled with the tremendous growth in the number of judicial opinions available, the result is more dicta than ever available for citation, with such dicta being treated with more deference than it deserves. The problem is well-illustrated by the controversy over citation to unpublished judicial opinions. Ninth Circuit Judge Alex Kozinski, a leading opponent of citing unpublished decisions, wrote in 2004: “Because unpublished opinions tend to be thin on the facts, and written in loose, sloppy language — and because there’s about a zillion of them out there — they will create a veritable amusement park for lawyers fond of playing games.” Unpublished opinions occasionally provided valuable guidance when a court has written with care to explain how it has decided a difficult issue. But that value is overwhelmed by the amusement park problem identified by Judge Kozinski, where almost any legal proposition can find support in some out-of-context statement made in an unpublished opinion. Appellate courts barely have time to do their work without the added challenge of policing statements in unpublished cases. Ironically, bad law in unpublished cases may persist where bad law in published cases is likely to be corrected by other courts. The solution to this problem is for lawyers to place less reliance on quotes from cases and for courts to give less deference to such quotes. A good example of the way dicta are misused comes from the long history of United Community Church v. Garcin, 231 Cal.App.3d 327 (1991). This case is well known because it contains the so-called “Golden Rule” of summary judgment. While the Golden Rule is an excellent practice pointer, as explained below it is at odds with the summary judgment statute.
A holding is what a court does, not what a court says. It is the result that a court reaches based on the particular facts before it.

Garcin involved a legal malpractice claim in which the defendant attorney had failed to file an answer and his client had suffered a large default judgment. The trial court granted summary adjudication on liability for plaintiff even though the plaintiff’s opening and reply papers did not address the defendant’s causation defense. The Court of Appeal reversed the trial court’s finding of liability because the plaintiff never addressed the defendant’s affirmative defense in its summary adjudication motion. Accompanying that holding, Justice Charles Vogel clearly stated the Court of Appeal’s rationale for reaching its result. Justice Vogel wrote an excellent explanation of how separate statements in support of summary judgment motions were required “not to satisfy some sadistic urge to torment lawyers” but to provide due process to opposing parties and expedite court review of complex motions. This due process rationale is the ratio decidendi of this opinion. Justice Vogel also gave a broader overview of how summary judgment motions should be handled. His Garcin opinion quoted a 1989 article from Los Angeles Lawyer magazine on the subject of separate statements: “This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.” This statement is certainly a useful rule of thumb for practitioners who would like to win a summary judgment motion. Unfortunately, later courts and many practitioners have cited the statement in support of a much broader (and incorrect) proposition: that if any fact or evidence is missing from a separate statement, a summary judgment motion must automatically be denied. The summary judgment statute gives courts discretion to deny motions when separate statements are not perfect: “The failure [of moving party] to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion,” reads Code of Civil Procedure section 437c(b)(1). The statute’s clear statement has not prevented the Golden Rule quote from being cited in almost every summary judgment opposition in California for years. Few of those cases involved a summary judgment proponent completely ignoring a causation defense as the plaintiff had in Garcin. Instead, this quote was often cited to support any sort of technical nit-picking about a moving party’s separate statement. Nothing in Justice Vogel’s opinion suggests that a minor defect in a separate statement must be fatal to a summary judgment motion. Yet that is exactly what many practitioners and judges cited it for over the years. The Golden Rule is less shiny these days because another court wrote in 2002 that that the rule is made of “baser metal.” In San Diego Watercrafts Inc. v. Wells Fargo Bank, 102 Cal.App.4th 308 (2002), the Court of Appeal simply read the statute that defects in the separate statement “may in the court’s discretion” be grounds for denial of a motion. Since the statute itself says that courts have discretion, the Golden Rule should never cited for the proposition that courts do not have discretion. The statute gives us the real rule; the Golden Rule, when improperly cited in this manner, is wrong. The point here is not to suggest that Justice Vogel should not have included the Golden Rule quote in his opinion in 1991. Rather, the point is that there is an over-reliance on quotes that mistake dicta for holdings. Lawyers lead judges astray by citing quotes like the Golden Rule for propositions that the quotes do not support. The words of the summary judgment statute had to compete with the Golden Rule quote for years in a contest about what rule should be applied. In fact, all lawyers and judges should agree that the statute is the ultimate authority. Court files today are filled with page-limit busting, string-cite laden briefs. The size of today’s court filings makes it difficult for most judges to read the papers put before them, let alone study them thoroughly or read the cited authorities. Length does not correlate with effectiveness. Here are five suggestions for making better use of case authority: 1. Don’t just quote cases; analyze them. Since judges are often hard-pressed to read the case authorities cited to them, give judges what they need to know about a case in your brief. This can be as simple as a parenthetical, but it should provide the court with the context of your authorities to make them more compelling. Likewise, take your opponents to task when they pull out-of-context quotes out of cases. When you can show that the holding of a case cited by your opponent does not support his argument, you become the more credible advocate in the court’s eyes. 2. Use fewer authorities. Authorities cited in a brief should help a court reach the desired result. If a particular case authority supports your position, it is worth giving the court a brief explanation of the facts, procedural posture and result of that case. Citing fewer cases, while providing the court with sufficient information about each one, will be more valuable to the court than long string cites or case quotes taken out of context. Five citations with no explanation are less valuable than one with analysis. 3. Be candid about the cases you cite. Every lawyer is faced with situations in which a reasonable proposition has not been addressed by case authority or, worse, has been rejected by a court. If you have an argument worth making in the face of such obstacles, a court will appreciate candor. If you believe cases help your position but do not directly support it, tell the court and use the force of your argument to urge the court to go where prior courts have not gone. If authority rejecting your position exists, it is better to attack it directly than to ignore it. That gives your opponent the opportunity to bring it up and makes both you and your position less credible. Winning on an issue where there is either no authority or authority against your position is always difficult. Candor with the court will be noticed and will give your argument the best chance to succeed. 4. Give the court enough information but not too much. Judges appreciate it when briefs do not bump up against the page limit. But they do not always have time to look up the cases you cite. Thus, it is important to provide enough information about your case authorities so that the judge does not have to read the case. A lawyer may be so familiar with relevant cases that, when writing a brief, she will leave out information that she knows well but that a judge may not know because the judge has not read those cases. The brief has to provide enough information to educate the court on the relevant cases. That said, the brief is not a forum to show how much you know about the relevant cases. Only the most critical or most complicated case authorities will merit more than a paragraph in a brief. 5. Remember the distinction between holdings and dicta. Quotes are easy to use. It is more difficult to be precise about what your authorities say and do not say than to play games in that vast amusement park of authorities that Judge Kozinski warned about. But courts will appreciate precision in the use of case authority. Discipline will make your good arguments better, reduce the number of poor arguments you make and, most importantly of all, help you win more cases. David A. DeGroot is special counsel in the business trial practice group in the San Francisco office of Sheppard, Mullin, Richter & Hampton.

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