Tag Archives: Torts

What are Dicta?

Law school has started back again, and one of the common questions that law students have been asking is how to identify dicta (singular form dictum) in the cases they are reading. Black’s Law Dictionary defines dictum as “[a] statement of opinion or belief considered authoritative because of the dignity of the person making it.” In a judicial opinion, dicta are the statements made by the court about the law that were not necessary for the court to decide the case.

As a new law student it can be difficult to identify dicta at first because so much seems new about everything you are reading. As you gain experience reading cases, it will become easier to separate out the court’s necessary statements regarding the law from those that are dicta. In the meantime, here are a few tips to get you started:

(1) Not every case will have dicta—but when it does, what you are looking for are the places where the court is describing something that is not necessary to decide the case.

(2) Look for places where the court talks about the history of a legal concept. That discussion may help put the law in context (and, in fact, you may find it valuable in your studies for that very reason!), but the history of a statute or common law rule isn’t necessary to decide the issues in a particular case.

(3) Look for places where the court’s discussion of the law and facts does not address the issues raised in the case. If it does not address the issues, that discussion is not necessary to decide the case and is likely dicta.

(4) Look for places where the court is discussing a hypothetical situation. Maybe the court talks about some facts that are not actually the facts of the case, and discusses what would happen if the law was applied to those hypothetical facts—this is a really good example of dicta. For example, in the first few weeks of most Torts classes, law students read the case of Vosburg v. Putney, 50 N.W. 403 (Wis. 1891). In this case, the court held that the defendant was liable for the tort of battery because he kicked (or maybe nudged) the plaintiff’s leg. The facts of the case show that the incident took place in the classroom, after the teacher had called the class to order. The court talks about what would have happened if the kick had taken place on the playground instead of in the classroom. Because the kick did not take place on the playground, this discussion was not necessary to the court’s decision and any legal statements about the hypothetical are dicta.

(5) I always look for dicta last—if you identify the issue(s), holding, and rationale behind the court’s holding first, you will be able to more efficiently identify things that were not necessary to the court’s resolution of the issue(s).

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The Most Frustrating Phrase in Law School: “It Depends”

For those of you beginning law school this month, welcome to the world of uncertainty! From childhood, we have all been taught that there are rules—absolute truths, if you will–that guide our understanding of the subjects we have studied. We memorized dates, names, and other important facts for history class: World War II began with Germany’s invasion of Poland on September 1, 1939. George Washington was the first President of the United States. We learned in math class that 8 + 2 = 10, and 8 x 2 = 16. If you memorized the rules and applied them in your homework assignments and exams, you were ok.

On the surface, it would seem that law school should work the same way: Memorize the law and apply it on exams. After all, laws are really rules. Why shouldn’t you be able to approach law school in the same way that you approached those multiplication tables in elementary school or the periodic table of elements in Chemistry class? Although you will have to memorize a lot of rules in law school (legal tests, elements of legal claims, definitions of legal terms, etc.), law school learning doesn’t end there. Instead, the rules are merely the starting point to answering questions in law school. You will learn that the rules that you are memorizing apply in certain circumstances—unless they don’t. The result: As you immerse yourself in your studies, you will discover that one of the most common phrases in law school is “it depends.”

For example, in your Torts class you will soon learn about the tort of battery. Black’s Law Dictionary (9th ed. 2009) defines the tort of battery as “[a]n intentional and offensive touching of another without lawful justification.” This definition seems pretty straightforward. A new law student might assume that, if she applies this definition on the exam, she will be able to answer the question: Did Bob (the defendant in the hypothetical) commit the tort of battery? In reality, the answer is not as simple as it seems. A seasoned law student will know from experience that the real answer is, “It depends.” Specific facts in the hypothetical will have an effect on a law student’s analysis. For example, what if Bob intended instead to commit an assault (another type of tort), but caused a battery—will he be liable for battery when he didn’t intend that act? What if we don’t know what Bob’s intent was? What if Bob only touched the plaintiff’s purse, which was hanging from her arm, rather than part of her body? These types of facts may have an effect on your answer.

Your answer may also depend on whether there are other legal rules that intersect with the rules regarding battery. You will learn that Bob’s actions may not be a tort if he is able to assert a defense. For example, Bob may argue that he is not liable for battery because the plaintiff consented to his actions. Or maybe Bob is a police officer, acting under authority of law. Maybe Bob will argue that he was acting in self-defense. There are numerous possible defenses that Bob may attempt to assert, and those defenses may change your analysis.

The lack of absolute answers in law is one of the reasons why law students tend to find their first-year experience so stressful. Every time that you feel like you are beginning to understand a legal rule, your professor will introduce another possible exception to that rule. The law sometimes feels like a moving target—and you are trying to hit it while wearing a blindfold!

In reality, mastering the “it depends” moments in law school is one of the keys to academic success. The uncertainties create opportunities for a more in-depth exploration of the law. Wrestling with the ambiguities will improve your legal reasoning skills, making you a better law student and, ultimately, a better lawyer. It is also important to understand that those areas where you can identify uncertainties are prime areas for testing—if you identify them and plan for them as you study, you will be better prepared for your law school exams.

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