No. Binding authority doesn't always work, though it most times it will. When a court feels that the equities in a particular case don't call for a dismissal because it would create a miscarriage of justice
, it will find a way to distinguish the two cases on the facts and deny the dismissal under those (and then in other cases which are similar in that way) circumstances.
Few things in law are absolute. Determinations regarding dismissals are generally on a case-by-case basis.
As for persuasive authority, that will depend entirely upon how the judge sees a particular case. If it's a close call, he'll ask both sides to put the argument on papers, and once he's read both memos of law he'll rule.
It's not meaningful to talk about "how often" or "what percentage of the time. . . " because the answer is going to be dependent on the facts of the particular case in front of the judge. However, if caselaw shows that an argument for dismissal is there to make, it should absolutely be made. And if the judge denies the dismissal, it should be objected to, thus preserving the issue for appeal if ever relevant.
Edited by FranL on 7/4/2010 at 12:23 PM EST