One of the stranger practices I have encountered during my career is when judges decide motions at oral argument and then direct one of the lawyers to handwrite an order reflecting the court’s decision. This does not happen in every court, and plenty of judges either prepare their own orders or direct the parties to submit a proposed order after an appearance. However, I have seen judges announce a ruling and then expect counsel, sometimes right there in the courtroom, to write out an order that the judge can sign.
I understand why judges might employ this practice. Courts are busy, and it can be efficient to have the lawyers memorialize what just happened rather than requiring court personnel to prepare an order themselves. Moreover, the lawyers presumably understand the issues involved in a case and should be able to reduce a straightforward ruling to writing. Nevertheless, judges should generally avoid this practice since lawyers have adversarial interests, and handwritten orders prepared immediately after oral argument can create unnecessary confusion.
Perhaps the biggest problem is that lawyers may disagree about what the judge actually decided. Oral rulings are not always delivered with the precision of a written decision. A judge might discuss several issues, explain tentative thoughts, and then announce a ruling without specifying every detail necessary to implement that decision. The parties can walk away from the same oral argument with different understandings about exactly what relief was granted and what obligations the parties have going forward.
This can put lawyers in an awkward position when one attorney is asked to write the order. The lawyer naturally wants to draft language that is favorable to his or her client. Of course, attorneys have ethical obligations and should never intentionally misrepresent what a judge ruled. But there can be substantial room for reasonable disagreement about how an oral ruling should be reduced to writing. One lawyer might believe the judge intended a broad directive while opposing counsel believes the ruling was far narrower.
I once dealt with this situation after a judge decided a motion at oral argument and asked counsel to memorialize the ruling by hand. Almost immediately, there was disagreement among the lawyers about the language that should appear in the order. Everyone had just heard the same ruling, but the parties had different views about what the judge intended. Instead of ending the dispute, the ruling essentially created a new argument about how the ruling itself should be described.
Handwriting an order can create other problems as well. Lawyers are usually focused on advocating for their clients during oral argument, not taking a perfect transcription of everything the judge says. Counsel might be thinking about questions from the bench, arguments made by an adversary, or issues that need to be addressed before leaving the courtroom. Asking a lawyer moments later to reconstruct the precise contours of a ruling can therefore be a recipe for mistakes.
There is also something less than ideal about important judicial directives being memorialized through hurried handwriting in a courtroom. Depending on the circumstances, orders can affect discovery obligations, deadlines, monetary payments, injunctions, and numerous other significant rights. Lawyers and their clients may need to rely upon the exact wording of an order months or even years later. Everyone is better served when there is a clear document that accurately reflects what the court intended.
Of course, judges do not necessarily need to draft every order themselves. In many situations, it makes perfect sense for a judge to direct counsel to submit a proposed order after oral argument. This gives the parties time to review the language, consult a transcript if necessary, and identify disagreements before an order is entered. A judge can then resolve any disputes about wording and sign a document that accurately reflects the court’s ruling.
Judges could also dictate the precise terms of an order on the record or have court staff prepare a short order when the ruling is straightforward. Any of these approaches reduces the possibility that one side will have undue influence over the language simply because that lawyer happened to be holding the pen.
Lawyers already have enough things to fight about. They should not have to engage in a negotiation in the courtroom about what a judge meant five minutes earlier. When courts issue rulings, everyone benefits when the resulting orders are clear, deliberate, and unquestionably reflect the judge’s decision. Judges should therefore think twice before asking lawyers to write the order themselves.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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