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“But No One Argued That: Sua Sponte Decisions on Appeal”

For the Defense Magazine By James E. Goldschmidt and E. King Poor

Below is an excerpt:

When appellate courts decide issues on their own, they may undermine the values of our adversary system. Sua sponte decisions need greater consistency to preserve those values

It happens. It doesn’t happen on every appeal, or even often, but it does happen. Lawyers frame the issues for a reviewing court in their briefs. They present them again at an oral argument. Then, months later, the court decides the case based on an issue that neither side ever mentioned.

Over 25 years ago, Professor Robert Martineau provided a metaphor for sua sponte appellate decision making that still rings true. He noted that there’s a “general rule” that appellate courts should not decide issues not raised by the parties. And then there’s the exception, known as the “gorilla rule,” “that is, unless they do.” R. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023 (1987). That is because the 800-pound gorilla may sit wherever it wants. Id. fn. a. The image of the gorilla sitting wherever its wants makes a point: it calls for a discussion of how reviewing courts are governed by more than the law of the jungle.

This article looks at what is at stake— for litigating parties and for our legal system as a whole—when reviewing courts render decisions sua sponte. And it asks two basic questions. First, what can appellate advocates do to anticipate and address sua sponte rulings? And second, what can the judiciary do to articulate more consistent and evenly-applied principles and procedures for when a court may decide a case based on an issue that no party has raised?

Originally published in For the Defense Magazine, October 2015

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