How Do You Draft a Proposed Order?

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By Laura Temme, Esq. on September 16, 2019 8:18 AM

From legal ethics to negotiation, civil procedure to criminal law, law school undoubtedly teaches us a lot. The focus is generally on providing the best representation we can for our clients, from the initial consultation to arguments at trial.

However, even though a court’s decision is the culmination of many types of cases, law schools rarely address how to draft a proposed order. So, whether you’re starting out in your first internship or it’s just been awhile, don’t panic.

Here are a few tips to drafting an effective order:

Don’t Forget the Basics

An effective order does several things at once. It outlines the important findings of fact, conclusions of law, and provides a clear basis for any appellate review. Bench books and pattern jury instructions can be a good source for straightforward statements of what the court is required to determine. Include information on why the court has personal and subject matter jurisdiction, the claims raised, and motions made.

Look for Examples

There are many great resources out there to help you meet the court’s expectations. Court files of other cases the judge has presided over can provide a clear picture of what they like to see in an order. Colleagues and online forms can also give you a jumping off point.

Do the Math

Where needed, attorneys should provide the mathematical calculations for the proposed order as well as evidentiary support. The judge is responsible for the final calculation, but counsel can help clarify the evidence in the exhibits and prevent errors.

Remember Whose Work Product It Is

It’s tempting to draft the order in a way that will make your client happy, but remember: At the end of the day, it’s the judge’s work product – not yours. However, there is sometimes room for some subtle advocacy.

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