This week’s theme has been orders. Every now and them, you are lucky enough to win. And when you’re even luckier, you get to prepare the winning order. Sometimes, though, you get asked to draft an order, and your opponent does, too. Drafting an order in that situation is a little tricky, because you have to wear your advocate hat underneath your coat (although, if you’re writing good briefs, you are probably making your brief sound like the perfect order already). Sometimes, you get asked to write a brief because the judge is humoring you and wants to show the appearance of neutrality even though she has already made up her mind. Sometimes, you and opposing counsel have cut a deal, and you get to draft the order. Drafting the order is an awkward opportunity, and if you get it, want to share a few tips with you about how to do it well.
Make the Judge Look Good
The order, when filed, is a reflection of the judge, even if some lawyer opens the file in the Clerk’s office a century from now. Make the legacy a good one. If your order is going to compete with opposing counsel’s, make your look better than the one he presents. Think about the layout, font, spacing, and other things. Matthew Butterick’s Typography Lawyers is just as helpful here as it is for preparing the brief. So is the Bluebook. Make the order look like something the judge will be proud to sign before she reads the first word of it. When you cite cases, don’t forget to provide pinpoints. Make sure that the cases you reference really stand for your argument. All the things that you do for your credibility in a brief are even more important when you prepare the Order. If you betray the judge’s trust in this task, you will never get the opportunity again.
Just the Facts Ma’am
Think long and hard about the standard of review. Divide the order into findings of fact and conclusions of law. Put as much of the important stuff as you can think of into the findings of fact. If your order on the judge’s behalf is appealed, the facts are going to have a more favorable standard of review than legal conclusions. But don’t stop there. When you get to the legal conclusions section, place findings of fact there, too. Many legal conclusions are mixed with factual findings. And factual landmines are just the thing to sprinkle into a law section of an order.
Have the Order Written (or, at least in mind) Before the Hearing
There are 3 reasons to pre-write it. First, when you think about how you’ll win, you already have victory in mind. Secondly, you will enter the field of battle with the ability to perceive the matter from the judge’s vantage point (you’re already considering it from your opponent’s, right?). And, from a practical standpoint, you can get a signature, get it filed, and get your client that much closer to the relief you are seeking. And you can hand over the “spoils of victory” before you leave the courthouse. Plus, things you can finish up at the courthouse don’t go to your inbox. Also, if the judge knows that he won’t have some item to take to his inbox after court, you get another edge over your opponent who didn’t bring a fill-in-the blank-and-move-to-the-next-case option for the judge.
I’ve written 3 orders this week. One was probably never read. One is under advisement. And one will likely be signed before the week is up. They’re deceptively difficult to draft. But there are worse things that could have happened to me this week than writing the orders for my client.