However, many authorities also recognize a third category, known as judicial diktats, to describe statements in a statement that were not necessary to determine the case in question, but still express the court`s legal conclusions on an issue raised by the parties: for most lawyers, this will literally be a unique experience, when a court disregards an important statement by a higher court because it is a saying. If, as in most cases, the saying is not preceded by a useful label, a well-known identification technique is the Wimbaugh inversion test. This test suggests reversing the statement at issue (for example, « the evidence presented was/was not sufficient ») and then asking whether the decision in the case would have been different? If this is the case, the declaration must have been a necessary part of the transaction. Otherwise, it`s a saying. The simplicity of this method is seductive, but it is far from infallible. In complex cases, it may be possible to overturn a single contested statement while reaching the same conclusion, even if the statement was part of the participation. Moreover, even if the statement was a saying, was it a legal saying? How can you be sure? But when you look at the bigger picture, it doesn`t seem to be what usually happens in practice. Whether dictated or not, courts tend to decide based on these statements much more often than they deviate from them. See Klein and Devins, « Dicta, Schmicta: Theory vs. Practice in Lower Court Decision Making », 54 Wm. & Mary L. Rev. 2021 (2013).
To compare theory and practice, the authors conducted an empirical study of thousands of state and federal cases adjudicated over a three-year period, looking for cases in which a lower court identified a superior court statement as a saying. The authors then evaluated a random sample of these cases to determine how often the lower courts followed the saying and how often they deviated from it. Their results have been revealing: it almost goes without saying that the precedent of each case is in his possession. The guidelines for future cases stem from the legal findings of our courts of appeal that these are the elements of the crime, that it was an adverse error or that it was insufficient evidence. See State v. Howell, 211 N.C. App. 613 (2011) (« The actual assets of the relevant recourse reports must be consulted »). One could argue that these figures do not necessarily prove that lower courts « follow » the saying or treat diktat as a precedent. Finally, it is possible that the trial court found the substantive argument convincing for the same reasons as the previous court.
And this alternative explanation could be as close as this post can come to give one last piece of advice on this chaotic issue. In cases where it`s not clear whether a statement holds or if a saying applies, lawyers may be more successful if they are less concerned with its classification and instead focus on whether (and why) it is a correct interpretation of the law. See, for example, Staat v. Martin, 223 N.C. App. 507 (2012) (« Even if we were to assume that the language cited in Bowditch is dicta, we find the Supreme Court`s reasoning in this case very convincing and would apply it in this case »). Buccieri, Buchwalter, Gore, and Griffith, « Judicial Dicta, » 21 C.J.S. Courts 226 (2020). The term judicial saying rarely appears in Appeals in North Carolina, but our courts seem to repeat this principle in some decisions. See, for example, State v. Springle, __ N.C.
App. __ (21. July 2020) (unpublished) (« Although the Supreme Court in grady did not find the entire legal system unconstitutional, its strong diktat on the constitutionality of the legal system on its face has left no viable constitutional path for anyone, including repeat sex offenders who are not under supervision, to be subject to SBM in accordance with our General Statutes, Sections 14-208.40 to -208.45 »). Most of the time, the distinction between dictum and holding makes no difference in the result. A comment, suggestion or observation by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts, but can still be cited as a persuasive authority in future litigation. Also known as Dictum, Dicta and Judicial Dicta. A dissenting opinion is also generally regarded as an obiter dictum. The « judicial saying » is a statement that the court expressly uses to guide the parties in their future conduct. As a general rule, such an expression of opinion on a point at issue in a case, raised by defence counsel and intentionally mentioned by the court, although not essential to the decision of the case, differs from a mere obiter dictum, and it becomes relevant if it is expressly declared by the court as a guideline for future conduct.
