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That's Not What the Judge Said!

At the end of a hearing, it is common for a trial court judge to direct the prevailing party to draft the written order resulting from the hearing. Unfortunately, many attorneys abuse this opportunity by drafting one-sided orders that go far beyond the findings and rulings made in the trial court. Busy trial court judges often rubber-stamp these orders, not realizing that they do not accurately represent the decision made at a hearing that occurred days or weeks earlier.

Florida’s appellate courts have expressed their concern with such one-sided orders, because the trial court’s verbatim entry of an order drafted by a party raises questions of fairness. As the Florida Supreme Court noted in Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004):

“When the trial judge accepts verbatim a proposed final judgment submitted by one party without an opportunity for comments or objections by the other party, there is an appearance that the trial court did not exercise his or her independent judgment in the case. This is especially true when the judge has made no findings or conclusions on the record that would form the basis for the party’s proposed final judgment. This type of proceeding is fair to neither the parties involved in a particular case nor our judicial system.”

The Florida Supreme Court’s Perlow decision allows a trial court to direct a party to draft a proposed order or judgment, but establishes guidelines to encourage fairness. If a proposed order or judgment is prepared by one party, the opposing party must be given an opportunity to review the proposed order or judgment and make objections before its entry by the trial court.

As a result, trial court orders and judgments violate Perlow if they are submitted to the trial court without being previously shared with the opposing party, and if they are quickly entered verbatim by the trial court before the opposing party can have a realistic opportunity to object.

There are several important steps to take in the trial court to avoid the problems caused by a one-sided order. First, it is a best practice to have a court reporter present at every hearing, so that the judge’s findings of fact and rulings are accurately captured when they are made. Without a transcript, the risk of an inaccurate order rises due to faded memories and incomplete notes. Second, it is important to ensure that the trial judge states his or her findings of fact and rulings on the record, rather than merely delegating the task to the party directed to prepare the order. Finally, a non-prevailing party should object as soon as possible to the submission of a proposed order that it has not yet reviewed, and request adequate time for objections.

Furthermore, the prevailing party drafting a proposed order has the ethical obligation to draft an order that accurately reflects the trial court’s ruling. Drafting a proposed order should not be used as an opportunity to “spike the football” and celebrate the trial court victory, nor should it be used as a vehicle to advocate for the prevailing party’s interpretations of the facts or law in a manner not stated by the trial court.


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