What the Court Order Should Contain
The first paragraph or element of the Order. The first sentence of the first paragraph should contain the date of the hearing. [This cause coming on to be heard this day of , 20__ on the Motion …”] There are times when the clerk’s date stamp is unclear or in conflict with other records. Reciting the date of the hearing in the body of the Order will serve as a reminder of the date and a secondary reference of the date the Order was entered. The contents of the first paragraph of the Order should include a recitation of the manner in which the issue was brought before the court; whether there were any responsive pleadings; prior Orders of Court which relate to the instant proceeding [this cause having been previously set for hearing this date by Order dated ]; the parties present or absent; the attorney’s present and participating in the action [in many cases the appearance is of the firm and it is not clear from the Order presented who the attorney was that participated]. Include a statement on any matters considered by he Court as a prelude to the hearing [stipulations, motion in limine, etc].
The second paragraph or element of the Order. The second element of the Order should include the findings of fact made by the Court. The pronouncements of the court must be justified by its findings of fact. The findings of fact recited in the Order should track with the pleadings presented [the complaint or petition taken together with the answer or response] which placed the matter in controversy before the court. It would be inappropriate for a Court to grant relief to a party through the issuance of an Order directing another to act or refrain from acting without first determining that facts exist to justify the Court’s Order. In many cases the validity of an order is based upon the statutory pre-requisite that the trial court make certain findings of fact.
The pronouncements of the Court, its ORDER, must be consistent with, and flow from the findings of the court as recited in the Order. The pronouncements must be clear and unequivocal in instructing a person to perform or refrain from performing an act. A Court Order which fails to clearly state the pronouncements of the court, such that a reasonable person understands what is expected of him or her, will not be readily enforceable by entry of a Rule to Show Cause. Moreover, the additional time and effort occasioned as a result of an Order that is unclear is a waste of judicial economy, a waste of the effort by the attorney and a cause for unnecessary expenses whether at the hand of the client or the attorney.
Finally, unless the Order or Judgement is dispositive of all issues relating to the case in chief where no further action will be necessary, the Order should include a date for further action [ex. “This cause is continued to 1-1-20__ for status on discovery heretofore ordered on (date)”. A Judgment is final if it terminates litigation on merits of the case and determines rights of parties so that if affirmed the trial court has only to proceed with execution of judgment; judgment is not final if court retains jurisdiction for future determination of a substantial controversy. Allabastro v. Wheaton Nat. Bank, App. 2 Dist.1980, > 46 ///.Dec. 653, 91 III.App.3d 222, 414 N.E.2d 537.
As a final incentive for the proper preparation of a court order, consider the issue of attorney’s fees. This is an issue that is or should be near and dear to your very survival. With that in mind, ask yourself whether the Order you presented to the Court would pass muster if you were seeking fees from your client after representing that client in this matter. If your client contests payment of your fees and hires other counsel to contest your fees and the matter went to a hearing, picture yourself testifying. You are being questioned about the services you rendered and your competency in that representation. The matter of the Order you hastily drafted becomes an issue of competence. It is pointed out that you failed to include relevant information that ultimately required three additional court appearances and many hours of your time to resolve and you billed the client for that time. Your former client is using the failed order as ammunition to challenge the rest of your bill on grounds of competency. How will you justify your request for fees? A critical issue on the question of attorney’s fees and justification for the hourly billing rate is the competency of the attorney. That competency is measured in part by the skill in drafting documents. The court order is a measure of competency. And, notwithstanding that the order was drafted by opposing counsel, if it fails to pass muster and you approved it, it is likewise a reflection upon you.
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