I
got an inquiry recently from a large law firm. They are trying to do things
consistently. They have some forms that are apparently used by all of the
attorneys in their firm. They recently received some requests from Judges about
the content of the law firm's orders. They wrote to me to ask whether they
should change their orders specifically for the requesting judges or make those
changes for their general form orders, that is change what they send to judges
throughout the state. On this point, they ask my advice. This took me a bit by
surprise, and I had to ponder the issue for a few days.
I
had to ponder because the foundation of the question is difficult. My premise
is that lawyers draft motions and stipulations, and judges draft orders. The
question of how a lawyer or law firm should draft orders is antithetical to me.
It is not the lawyer's role to draft orders in my opinion.
This
particular question came as to whether approves/disapproves” should be used
instead of “granted/not granted/granted in part” on fee orders. There was also
discussion of whether an order should say "attorney fees" or
"attorney fee" as only one attorney fee is being adjudicated.
Years
ago, I sent a joint petition ("JP") for settlement to a district some
miles from my practice in Jacksonville. I recall the volume of paper required
to effectuate a settlement in those days. The JP was about 30 pages long, and
we had to send in multiple copies. Eight copies sticks in my brain, but it may
have been more or less. I remember that I spent more than $6.00 sending the
package across the state.
Within
a few days, I received the package back. Not approved, no signed order. Instead
I received the whole package back, at a cost to the state of more than $6.00 in
postage. The district returned it to me because my proposed order was printed
on white paper, and that particular judge required the order for this type of
settlement to be on a particular color of paper. They explained this to me in a
typewritten letter that accompanied the returned paperwork. I complied,
prepared the new proposed order and spent another $6.00 plus mailing it all
back to that district office. I perceived a waste of the client's money and the
state's.
The
point of the story, though, is that the only way I could get the order on my JP
was to comply with the district office request. I am confident that the person
that typed the letter explaining to me the paper color requirement could have,
as rapidly, prepared an order (or copied my white paper order onto colored
paper). I am also confident that the cost of printing or copying that order
would not have equaled the $6.00 in postage of sending the package back. I did not agree with the district's process back then. Likewise, it seems it would be easy to prepare an order if a proposed order is not what the assigned judge expected or wished.
Understanding
that my first thought is that Judges and not lawyers should draft orders, my
second thought is that if a Judge asks that an attorney draft an order, the
result should be the order for which that Judge has asked. If there is a particular phraseology that is requested by the Judge, I think the appropriate
reaction is to draft that order with that language. It is not possible to force
consistency in this regard, because a given judge may want "fees" and
another may prefer "fee." Likewise, the next judge may prefer the opposite.
I
appreciate that the lack of consistency regarding this topic may be a frustration for attorneys.
I can see the advantage that consistency brings to the table, with an attorney
being able to practice across the state using the same procedures, forms, etc.
I also see the judicial independence argument. As I have noted on this platform
and others, judicial independence is your absolute right to have the judge
disagree with you.
In
the end, Judge's will do as they will. If they ask for an order to be prepared
for them, that is within their purview and independence. That a different judge
might prepare her/his own order, or request a different phraseology in an order
she/he asks you to prepare, is part of the practice. It is hoped that this
explanation may be some help in understanding why it is as it is.