Drafting Judicial Orders in Trial Court

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:

Convert “I” Language to “Court” Language

Reduce Unnecessary, Advisory Analysis

Replace “If…then” Statements

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.

Eliminate Unwanted Statements

You might include things like describing certain arguments as “frivolous” to judge

Or just think about side notes to the Judge