1. Drafting Judicial Orders in Trial Court

2. 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.

3. 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 - objections How will the order look to an appellate court Public record – is it a high profile case?

4. 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 advocate Organization – logical progression of issues (for example, procedural issues before substantive)

5. Most orders follow a simple overall structure Caption Introductory Paragraph (who, what, etc.) Facts (dispositive facts and then any facts necessary for context) Procedural History – consider weaving into the facts Analysis 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 clearly Judge’s Signature Line and Date

6. Tips for Organization Use of Headings and Transitions Do not use string cites Avoid footnotes Clarity and precision – avoid legalese Length? Simply put, it depends, but being concise is always appreciated by judge and counsel

7. Always proofread the draft order If you are able to, set it aside for 24 hours Maybe ask a fellow clerk to proofread for grammar, spelling, etc. When the judge asks you to draft a proposed order, do it immediately

8. 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:

9. Convert “I” Language to “Court” Language

10. Reduce Unnecessary, Advisory Analysis

11. Replace “If…then” Statements

12. 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.

13. Eliminate Unwanted Statements You might include things like describing certain arguments as “frivolous” to judge Or just think about side notes to the Judge