• videocam Live Webinar with Live Q&A
  • calendar_month December 1, 2026 @ 1:00 PM ET/10:00 AM PT
  • signal_cellular_alt Intermediate
  • card_travel Litigation
  • schedule 90 minutes

Appellate Persuasion Using Non-Binding Authority: Citing and Responding to Unpublished Opinions, Dissents, Dicta

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Discount expires 11/17/26

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About the Course

Introduction

This CLE webinar will discuss guidance and key considerations for citing and responding to unpublished opinions in federal appeals, identifying and handling dicta, leveraging dissents, and grounding any non-binding authority in established principles of law.

Description

Most appellate decisions are unpublished opinions that are not binding precedent. The same is true of dicta. In reality, however, non-binding decisions, dissents, or concurrences—and even dicta—have an enormous influence on how cases get decided and how the law develops. Dicta can even get elevated to holding.

Unreported opinions decide actual controversies and may be the only authority on a recurring issue. The Supreme Court grants certiorari to unpublished decisions all the time. But even experienced counsel often debate how much weight to give them, and when to ask a court to publish an opinion.

Appellate lawyers face an analogous conundrum with dicta. Dicta can be difficult to define, and every "test" for what it is or is not comes up short. Recognizing dicta can be particularly important when cases may have to be appealed multiple times. Stare decisis depends on it. Binding or not, dicta can offer additional insights into a court's logic and can be extremely persuasive—and telling a court that what it said can just be ignored is not always the wisest strategy.

Listen as this esteemed panel offers guidance to appellate lawyers on citing and leveraging technically non-binding opinions and portions of opinions to achieve their clients' goals.

Presented By

Bennett Evan Cooper
Member and Appeals and Advocacy Practice Group Co-Chair
Dickinson Wright PLLC

Mr. Cooper advocates for clients in high stakes appeals and writ proceedings in the U.S. Supreme Court, federal circuit courts, and state supreme and intermediate appellate courts from coast to coast. His practice includes appeals in a broad range of subject matter, with particular emphasis on such fields as insurance coverage and bad-faith defense; intellectual-property protection and e-commerce disputes; professional liability; federal, state, and local taxation; Native American law; and constitutional litigation. In March 2023, Mr. Cooper argued before the U.S. Supreme Court in Jack Daniel’s Properties, Inc. v. VIP Products LLC, a landmark case involving trademark parodies, and prevailed on remand in light of the Supreme Court’s new standards for infringement claims against parodies. In the U.S. Court of Appeals for the Ninth Circuit, he is the author of Thomson Reuters’s 1,000-page treatise Federal Appellate Practice: Ninth Circuit. A current member of the Ninth Circuit’s Advisory Committee on Rules of Practice and Internal Operating Procedures, Mr. Cooper previously served as the court-appointed Chair of the Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference.

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Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

Date + Time

  • event

    Tuesday, December 1, 2026

  • schedule

    1:00 PM ET/10:00 AM PT

I. What makes non-binding judicial decisions persuasive

A. Unpublished decisions

B. Dicta

C. Dissents

II. Relevant rules: Fed.R.App.P. 32.1 and state rules

III. Best practices 

A. Citing and responding to unpublished decisions

B. Citing and responding to dicta

C. Citing and responding to dissenting opinions

IV. Consequences of mishandling non-binding authority

A. With the court

B. Reputationally

The panel will offer guidance on these and other significant questions:

  • What makes non-binding judicial decisions persuasive?
  • What are the pros and cons of labeling opinions "non-precedential" or "not for publication," and how did Federal Rule of Appellate Procedure 32.1 moderate the debate?
  • If the only law on an issue is found in a body of unpublished decisions, are they really non-binding if judges follow them?
  • Why is it so important to be able to distinguish dicta, and what are practical ways to identify it?
  • How can lawyers argue that part of an opinion is dicta without appearing disrespectful?
  • May or should lawyers or law firms argue in one matter that certain text is dicta and then argue in another matter that the same text on the same issue is part of the court's reasoning and therefore binding?
  • How might a court's dissent be used to shape future strategy?