Write That Good Court Order
The hour is late and you have just completed a difficult hearing. Everything seemed to go well. Proper notice of the proceeding was given to parties and your pleadings were appropriate. You were successful and now it is time to prepare the Order for the Judge’s signature. You did not prepare the Order in advance - after all, how could you know the outcome. You are tired and opposing counsel is pressuring you to “get on with it”. You are determined to complete the Order as quickly as possible so you can leave the courtroom and attend to the myriad of other things that require your attention. You labor at counsel table drafting the Order. You scribble a few of the essentials that were accomplished and claim your victory. Your one-pager is finally complete. Satisfied that the Order is sufficiently vague, your opponent gives approval. The Order is given to the Clerk of Court and in turn the Judge signs off without reading the Order - after all, its your Order, you should have to live with it! Sound familiar?
The sad truth is that too frequently the Order or Judgment presented to the court fails to sufficiently represent or memorialize that which occurred at the hearing. This is especially significant where no court reporter or transcribing device was available to record the event, although, the principles applicable to the preparation of a proper Order should apply regardless of whether the proceeding was transcribed or not.
Before presenting the Order to the Court, the attorney should read it with a critical eye. Does it memorialize all that occurred at the hearing in sufficient detail that satisfies the, who, what, where, when and why with the specificity necessary to enforce the rights of parties? Does the Order recite the necessary statutory language? Keep in mind, the document you present to the Court is the Court’s Order and reflects upon that Judge as well as the attorney preparing it. The Judge has the right to insist that it be appropriate in form and content before signing it.
The downside to a poorly drafted order is that its terms may be so ambiguous or nonexistent that clarification may be required to inform the parties of rights and obligations. This may, in turn, require one or more court appearances and many hours of otherwise unnecessary time to correct. When that occurs, there is the inevitable question of, “Who pays?” That question may be answered by the dissatisfied client which, in turn, may lead to a dismissal of the attorney, an excuse for the client to refuse to pay fees and even possibly a complaint filed with ARDC.
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