Here’s an interesting question for the lawyers among us. What if the Judge in your case goes off on her own path? What if the Judge decides your case on totally surprising grounds that neither you nor the other side ever argued? Is that appealable? Is it a violation of some ethical obligation? How to deal with it?
First, as I understand the judge’s ethical obligations, she is absolutely required to apply the cases and law as she knows it regardless of what the attorneys might argue (or don’t argue). But (there’s always a but with lawyers) it is a good idea to ask the lawyers to supplement their arguments so she fully understands the facts and how those facts apply (or don’t apply) to the legal theory she is espousing.
Second, lawyers make mistakes. We don’t like to admit it, but we do. Sometimes lawyers just don’t find a key case. This can happen for many reasons including the fact that a recent decision has just been published. (That’s why, if you were wondering, my clients will see me doing last minute research just before a major hearing. Once in a while it pays off.)
Third, just because the Judge goes off on her own without asking you to argue her theory does not mean that you will automatically win. You will have to show that a) you didn’t get a chance to argue your point and b) that given the facts of the case, the Judge was wrong
When this happens, I get the chance to do on appeal what should have happened in front of the trial judge: show why I win under the Judge’s theory or, alternatively, why the Judge didn’t have enough facts to rule. It’s not easy to fix this problem but, fortunately, it doesn’t happen too often. Judges hate being reversed so they almost always will ask you to come back to brief and argue their own pet theories if you didn’t do it the first time.