Editorial: Articulate Gently The Motion For Articulation

The Connecticut Law Tribune

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Until this year, Connecticut's appellate articulation rules were applied harshly to appellants. Briefly, what Practice Book §66-5 said, as clarified by the Supreme Court on numerous occasions since the rule was adopted in 1978, was that if a trial court decision was unclear, it was the appellant's duty (unless the issue concerned an alternate basis to affirm, in which case it was the appellee's duty) to try to get it clarified.

If the appellant failed to do so—or the trial judge refused to do so and the appellate failed to ask the Appellate Court or the Supreme Court to order it done—the issue the appellate wanted reviewed usually would not be considered.

There is some irony here because the rule creating the motion for articulation in 1978 accompanied a rule abolishing the finding system, which appellants had been complaining about for decades because it was harshly applied to appellants. But a Supreme Court decision soon after 1978, by justices who were comfortably familiar with the old finding system, construed the rule to create a new harsh procedural system in place of an old harsh procedural system. The result was the same: The trial judge's failure to write a clear and complete memorandum of decision was blamed on the appellant, and a possibly meritorious appeal was lost on a procedural technicality.

So in the 2010s, as in the 1970s, the appellate bar rose up to complain. The result this time was not a supposedly new rule but a revision to Practice Book §61-10, which supposedly will allow for a kinder, gentler enforcement of §66-5.

Specifically, a new subsection (B) was added to §61-10, which concerns the responsibility of the appellant to provide an adequate record for appellate review, to state that failure to seek articulation under §66-5 will not be the sole ground to decline to review an issue. Also, the new language authorizes suo motu remand by an appellate court for articulation.

This is an excellent amendment to §61-10, but the real question the lawyer who takes an appeal will have is: How will (B) be applied? Rigidly, the way the Supreme Court applied the rule that was new in 1978? Or generously, the way it should be? Subsection (B) has been in effect for eight months but no decision has yet been released specifically discussing the language of (B). We hope that, when the Appellate Court or the Supreme Court do so, they will apply (B) generously.•

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