We in the common law world pride ourselves on our adversary system, where lawyers make the best arguments for opposing sides and judges decide which is the stronger argument. There is of course another world out there, the civil law world, where lawyers play a more modest role because the judges do much of the advocating, supposedly for the truth rather than for any particular party.
The problem with having a judge advocate for the truth is that most judges – indeed most people – have neither the rigorous mind nor the ample time to spend on one subject that Socrates had. Judges have busy jobs with many litigants pressing for their attention. When judges in a civil law system, having made their own investigation, come upon what appears to be the truth, they have no incentive to keep looking and plenty of incentive not to do so. The advocate for a party, on the other hand, does have plenty of incentive to keep looking.
But neither life nor law is black and white. Lawyers are not potted plants in civil law countries and judges are not umpires in common law countries, notwithstanding that Chief Justice Roberts used that metaphor in his confirmation testimony. He of all judges was no mere umpire when he cast the crucial vote upholding Obamacare based on a theory that was barely raised and that none of the parties were serious about.
So judges can approach or occasionally cross over the line from judging to advocacy in a common law system without destroying that system. The only question is when. In Connecticut judges in the past have generally intervened when they conclude the adversary system isn’t working, either because of lopsided representation or because both sides missed the important issue, especially when a possibly innocent person is rotting in jail. But the rules for such judicial intervention have been very fuzzy and ad hoc – until now.
Enter Blumberg Associations Worldwide Inc. v. Brown & Brown of Connecticut Inc., decided officially by the Connecticut Supreme Court on Feb. 18, 2014. In a unanimous opinion authored by Justice Richard Palmer, the court explained in great detail when an appellate court should and should not decide an issue not raised by the parties.
While Blumberg Associates specifically had to do with an obscure issue of contract law (the legal significance, if any, of a party’s hindering conduct before contract formation) that was not raised on appeal, the reasoning applies to all manner of issues and to both trial and appellate judges. In short, Blumberg Associates explains when it is appropriate for a judge in a common law system to be an advocate. It would take a much longer editorial to parse the court’s explanation. The point of this editorial is to publicize the importance of the decision, to commend the court for making the explanation, and to suggest that those of you who have read this editorial ought to pay close attention to Blumberg Associates.•