I hate to say it, but the last lawyer I worked for wanted cases to
say...what he wanted them to say...and so, quoting out of context, or
copying dicta (or worse..dissent) word for word was commonplace. In
fact, I have caught my opponents doing this on 2 seperate occasions
recently, and I always point it out to the court. I think most of the
time, it is an honest mistake to cite opinion, or reasoning, as if it
were holding. My point was that this mistake becomes easier to make if
you are scanning for "bold" search terms in a Wexis document.
Andrew Johnson, Esquire
On Fri, 18 Jun 1999 08:29:34 CST "Creighton Miller" <cmiller@law.ua.edu>
writes:
>One deeply hopes, though one is also far from certain, that most
>lawyers think to read the case before actually citing it in court
>documents, whether they found the case online or in print. If not,
>we've done a rather poor job of teaching them to research. Of course,
>even if they do read their cases, I certainly wouldn't guarantee that
> average summer associates can distinguish between holdings and dicta.
>
>>
>> On the other hand, here's where you lose by NOT using the books.
>There
>> is only one part of a case that is binding...it's called, "holding."
> The
>> search terms the associate finds may be buried in either dicta,
>opinion,
>> reasoning, or factual analysis of the case. Here's where he had
>better
>> not get confused...None of these things are binding. Most lawyers,
>> including myself, readily point out when an opponent has cited dicta
>as
>> if it were the holding of the court. It is easy to make this
>mistake if
>> you are simply skimming the case for your bold search terms.
>>
>> Andrew Johnson, Esquire
>>
>
>Creighton J. Miller, Jr.
>------------------------
>Assistant Law Librarian/Reference
>Bounds Law Library
>University of Alabama School of Law
>Tuscaloosa, AL
>(205)348-2373
>------------------------------------------
>http://www.library.law.ua.edu/
>------------------------------------------
>
>
>
>Creighton J. Miller, Jr.
>------------------------
>Assistant Law Librarian/Reference
>Bounds Law Library
>University of Alabama School of Law
>Box 870383
>Tuscaloosa, AL 35487-0383
>(205)348-2373
>------------------------------------------
>http://www.library.law.ua.edu/
>------------------------------------------
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