By Chinua Asuzu
Judges, whether trial or appellate, should review their drafts to minimize, if not eliminate, all dicta neither pertinent to the outcome nor true to principle.
As Mansfield CJ put it in 1772, “I care not for the supposed dicta of judges, however eminent, if they be contrary to all principle.” Somerset v Stewart [1772] 98 ER 499.
Obiter dicta can also hurt the system by being misread as part of rationes decidendi.
So judges must resist the lure of the intellectual, literary, or philosophical frolic.
They should reserve their beloved but impertinent adages, examples, maxims, parables, poetry, quotable quotes, and stories for their forthcoming memoirs.
Never mind how your decision would have read if the facts had been different.
“Do not try to cover every contingency,” else you’ll be unable to express yourself clearly. Joyce J. George, Judicial Opinion Writing Handbook, 5th ed. (Hein, 2007), 30.
Solve the problem before the court.
Chinua Asuzu, Judicial Writing: A Benchmark for the Bench (Partridge, 2016), 10.
