drafting judicial orders in trial court. remember the purpose of the order 1. reflects a judge’s...
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Remember the purpose of the order
1. Reflects a judge’s ruling on a discrete issue raised by a motion.
2. The order reflects what happened at the hearing. Review copy of transcript. Do not include in your order any issue not raised at the hearing.
3. The order protects against appeal or reversible error.
Remember your audience
Consider the judge (time and patience with rewriting)
Make sure it conforms to court’s preferred style; shephardize all authority; proofread; compare transcript to order; anticipate objections to the order.
Lawyers - objectionsHow will the order look to an appellate courtPublic record – is it a high profile case?
Do not underestimate the importance of form, structure, and style
Use judge’s preferred style. How do you know what this is?
Do not simply cut and paste from your bench memo – additional things may have been raised during hearing
Neutral tone – you’re not an advocateOrganization – logical progression of issues
(for example, procedural issues before substantive)
Most orders follow a simple overall structure
CaptionIntroductory Paragraph (who, what, etc.)Facts (dispositive facts and then any facts
necessary for context)Procedural History – consider weaving into
the factsAnalysis of law – (1) standard of review; (2)
IRAC or the elements of a statute/prongs of test with subheadings
Conclusion – state the judge’s ruling clearlyJudge’s Signature Line and Date
Tips for Organization
Use of Headings and TransitionsDo not use string citesAvoid footnotesClarity and precision – avoid legaleseLength? Simply put, it depends, but being
concise is always appreciated by judge and counsel
Always proofread the draft order
If you are able to, set it aside for 24 hoursMaybe ask a fellow clerk to proofread for
grammar, spelling, etc.When the judge asks you to draft a proposed
order, do it immediately
Turning Bench Memos Into Orders
Bench memos generally cover more legal ground than the final order.
Making the final order usually requires additional research and explanation of those points that are particularly important to the courts conclusion
Here are some other stylistic tips:
Clarify Facts
Might be more clear after hearing.Parties might concede points or highlight
facts that are in dispute.Think about how this might lead to some
tweaking of facts.