Monday, November 18, 2013

Consistency

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 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. 








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