February 12, 2014
Most discussions and articles about more effective “legal writing” focus on those more advocative in nature – things like memoranda and legal briefs in which you actively argue a position or positions for your client.
Although such forms of writing are important (and we’ll get into them later in this series), they are often not the types of “legal writing” with which many attorneys are engaged on a regular basis. Instead, the kinds of legal documents that these attorneys are faced with are those that aren’t inherently adversarial, such as proposed orders.
Such a “proposed order” is one that is jointly submitted to the court by both parties, and may memorialize a negotiated settlement or may represent the findings and conclusions reached by the judge during a specific hearing (for the purposes of this article, I’m not referring to proposed orders that are submitted separately by each party to the court for consideration).
Either way, the nature of this proposed order is generally not regarded as adversarial; that is, the purpose of the document is not to make a legal argument on behalf of your client.
And this much is true: the purpose is not to make a legal argument for your client. But that doesn’t mean that there’s no room for advocacy in you ever find yourself drafting such a document.
There are two important pieces of advice to keep in mind, here, though.
The first is less about being adversarial in your document drafting and more about being a good advocate for your client: Plan for every contingency.
This means that, before you sit down to write your proposed order, you first identify the issues that your client has faced in the case, and the possible problems that could arise in the future – even with this order in place.
After you have identified any possible problems for your client, think about what could be written into the order to mitigate or outright eliminate these issues.
The process doesn’t end there, however; unless something was specifically agreed to by both parties, you can’t just add something into the order unilaterally.
Your options at this point, then, are twofold: first, you could discuss your proposed additions with the opposing counsel and secure his or her agreement before making the change. The advantage of this approach is that your opposing counsel is unlikely to object to the final document because something surprises him or her. On the other hand, if your proposed change is too significant or deviates too much from the norm, you seriously risk the opposing counsel rejecting such a change outright and your losing the possibility of having the desired provision in the proposed order altogether.
Your other option, then, is to identify any commonly-used clauses that could accomplish what you hope and unilaterally add it or them in. The biggest concern with this approach is ensuring that whatever you add in truly is “standard” in such orders (or is at least arguably so). If you ever have any doubt, check with your opposing counsel first – but do it in such a way so as not to fully reveal your motivations for asking.
Let’s use a custody and parenting time order as an example. If transportation of the child has been an issue between the parties in the past, you may suggest an arrangement that best ameliorates these problems (assuming that the issue was not previously discussed by the parties). When asking opposing counsel about the issue, it’s best to bring it up in a way that appears as though you are just “filling in the blanks” of the proposed order (i.e. making sure that all of your necessary clauses are present): “What do you want to do about transportation? Should we just do X [your proposal]?”
If he or she objects, you can discuss it with them to hopefully reach the conclusion that you want.
But therein lies the inherent problem with first discussing the proposed additions or changes with opposing counsel: you bring his or her attention to the specific issue.
If you simply add in the clause and submit the document for his or her review, there’s a very high chance that the opposing counsel will simply miss the tree in the middle of the forest.
That’s assuming, of course, that the tree you’ve planted isn’t bright pink or on fire. That is, if you are going to advocate for your client in any way through the drafting of the proposed order, you have to make it appear absolutely neutral on its face. It’s up to your opposing counsel to thoroughly review the proposed document and object to any provisions that may not be in his or her own client’s best interests. If he or she fails at this, you are not to blame.
As a final note on this topic, always ensure that you do not explicitly deviate from what the parties agreed to or what the judge ordered; your wiggle room lies only on the space where the parties or the judge have been silent.
However, this “wiggle room” can allow for significant advocacy for your client – if done subtly enough.