This is a medical malpractice case; the issue was causation. We will not blog it, for one or more reasons set forth in our FAQ. But it raises a question of judicial technique on which we feel free to comment.

Although the opinion does not suggest it, we are informed that the court decided the case using a legal analysis different from that presented by either party.

From time to time the appellate courts have said more or less that they are not bound by the parties’ legal analysis if following it would produce an incorrect result. The principle is salutary; two wrongs don’t make a right and it may be that neither party knows what its talking about. The problem is that the court doesn’t, necessarily, either.

There is a difference between rejecting both parties’ legal conclusions and rejecting their analysis – between deciding that the cases don’t mean what either party argues and deciding that neither even knows what cases or rules of law to argue. A court’s analysis is informed by that of the parties; its decision results from the collective wisdom of them all. This is the system’s way of trying to ensure that that decision is correct, that it is consistent with precedent, and that it hasn’t overlooked any major problem. It is also the way that the people contribute to the making of their common law rather than being in thrall to judicial ukases. If some judicial functionary can discard what the parties have said and start with a tabula rasa then the adversary system is thrown out the window. And respect for the system requires the recognition that not everyone who writes an opinion is an experienced expert on the subject or a supple legal mind. When an appellate court decides that the parties got it all wrong – when their analyses, not just their conclusions, are mistaken – then the thing to do is to solicit supplemental briefing on what the court believes to be the right analysis. That can either let the parties know that they were wrong or let the court know that it was.

When that doesn’t happen a routine case can jump the tracks and turn into a disastrous train wreck that splatters debris all over the law. Not that we’re expressing an opinion about this case, you understand.