Verdict - Summer 2011 - (Page 16)

feature A Rule Needing Limits: The “Right For Any Reason” Rule T BY EUGENE C. BROOKS, IV & GINI LYNN JENKINS he “right for any reason” rule allows the appellant courts to sua sponte raise a new issue and affirm the trial court on this issue that no litigant has briefed or had the opportunity to refute. justice.”8 The blending of courts of law and equity may be responsible for the confusion created by the seeming arbitrary application of the “right for any reason” rule, referred to in other jurisdictions as the “affirm for any reason” rule.9 Regardless of the historical reason for the rule’s development, tension between the appellate courts’ passive and active roles exist. Active courts chafe at the general rule’s restricted scope of review. One court stated that restricting the court to registering reactions to counsel’s argument “would be to render automatons of judges.”10 Reviewing courts have an impulse to sua sponte expand their scope of review to address “plain or fundamental error” that it considers dispositive.11 Yet, Judge Phillips, formerly of the U.S. Court of Appeals for the Fourth Circuit, wrote that every departure from a scopelimiting rule undercuts the adversarial process, and subverts the appellate court’s moral authority over the trial bench, the practicing bar, and the public.12 The U. S. Supreme Court has cautioned the appellate courts by stating, “our procedural scheme contemplates that parties shall come to issue in the trial forum with authority to determine questions of fact. This is essential in order that parties have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by a final decision there of issues upon which they have had no opportunity to introduce evidence.”13 However, the Court continued, “[t]here may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where This expanding appellate discretion generates language such as: “Although not raised by the parties or the trial court, we must address the following statute because it is relevant to whether the trial court’s order was right for any reason.” 1 Really? The Supreme Court ruled without hearing from the parties’ lawyers who may have considered the statute and, for good reason, thought it inapplicable? Why wouldn’t the Court be interested in the lawyers’ or the trial court’s views? The “right for any reason” rule expands the appellate scope of de novo review, exposing parties to surprise rulings without due process, compromising the court’s neutrality, and undermining confidence in an opinion reached without full adversarial debate. Appellate jurisprudence harbors a tension between the passive and active role of an appellate court.2 An appellate court fulfills its passive role as a neutral arbiter when reviewing trial court decisions raised and argued by adversaries.3 An appellate court takes an active role comparable to the inquisitorial role of European Courts, when the court chooses the salient issues.4 This tension creates confusion. Historically, courts of law limited their review to issues raised by adversarial parties, decided by a trial court, and enumerated in accord with procedural rules.5 This process, referred to as the “general rule,” provides for the orderly presentation of adverse arguments by notifying all parties and providing opportunity for each to be heard.6 Under the “general rule,” the parties control the issues for the court’s review.7 Courts of equity were not so limited. Courts of equity could choose their issues necessary “to do 16 Georgia Trial Lawyers Association

Table of Contents for the Digital Edition of Verdict - Summer 2011

Let the Jurors Be Heard
A Rule Needing Limits: The “Right For Any Reason” Rule
Speaking Out of Turn: Ex Parte Interviews With Plaintiff’s Treating Physicians
GTLA 2011 President’s Gala: In Pictures
Legislative Relationships: The Key to Legislative Results
Welcome to the Federal Rules of Evidence: Georgia’s New Evidence Code
Judicial Spotlight: Reflections from the Bench
Book Review: The Fall of the House of Zeus
How I Obtained Justice for My Client: Cranford v. Ernest Homes
Technology Update: Securing Justice for Victims of Negligence? There’s an App for That!
Lessons from the Listserver: Is Defendant Driver History Permissible
Recent Updates in Workers’ Compensation
Welcome New GTLA Members!
Profile Listings

Verdict - Summer 2011