Ever wonder how the lawyer on the other side seems able to get a court order saying precisely what they want entered in the record? It’s almost like they wrote it themselves and somehow got the judge to sign it.
Fact is, that’s probably exactly what happened.
Sometimes they’re upfront about it. Finding a court order in the mail that says it was prepared by your opponent’s lawyer is one of the worst things to experience as a pro se litigant. It shouldn’t be allowed.
Except you can do the same thing, and you should. And you would if you could, right? There ought to be a simple formula for how to get a court order you want. Well, as it turns out, there is.
The Judge Wants To Do Right
The thing about judges is they do only one thing — issue orders in their cases. The rest of their daily routines are spent making sure their orders are correct. So your job as a litigator is to motivate judges to sign the orders you want them to enter. You do that by filing persuasive motions with the court.
The best way to get a court order you want is to write that order yourself, a proposed order you want a judge to sign and enter. Then ask yourself, “Why would a judge enter that order?”
Actually, that’s the wrong question. The right question is this:
Why must the judge enter that order?
And the reason in all cases is because it’s the law. You must show the judge that the order you’ve written is required by law, given the facts of your case.
To get a judge to enter the order you want, give her a motion that contains the facts and law requiring her to enter the order you want. It’s really just that simple.
Get A Court Order Using Facts And Law
There are over 4 million opinions in the United States that in one way or another limit what judges can do. In effect, they tell judges how to think about the rulings they’re asked to make, and whether their rulings are correct or incorrect. Each opinion has two sets of facts: (1) the underlying facts, or events prior to litigation that prompted the lawsuit, and (2) the procedural history, or the steps taken in the run-up to a judge’s decision.
These opinions are the law, case law in particular. Yes, judges also make law, not just legislators. But these aren’t run-of-the-mill judges. The judges who make law sit on appellate courts to review the decisions of regular judges. That’s why regular judges must obey them.
To get a court order you want, file a motion that requires (or at least motivates) the judge in your case to make the ruling you want. Here’s a recipe for doing that:
- Draft a proposed order.
- Determine the relevant facts.
- Provide evidence for the facts.
- Find case law to support your order.
- Argue your motion in court.
- Give the judge your proposed order.
That’s all there is to it. If you can do that in a way that’s persuasive to the judge, you will get the order you’ve written for that judge’s signature.
Dismiss Your Foreclosure — An Example
You’ve got an FHA mortgage loan in default. According to federal regulations governing FHA loans — say, 24 C.F.R. § 203.604 governing HUD — the mortgagee (your bank) is required to visit your home to work out a loan modification before filing for foreclosure. In fact, the regulations require the bank to visit you within 30 days of declaring a default on your mortgage.
Yet while you received the bank’s notice of default several months ago, no one from the bank visited your home before you were served the foreclosure summons. You would like a judge to enter an order dismissing the foreclosure with prejudice on grounds that the bank did not give you the required notice within 30 days following declaration of the default.
How would you get a court order that kills your foreclosure? (Please don’t try this at home. The facts in this example are for illustration only.)
1. Draft a proposed order.
An order can grant or deny a motion for summary judgment, for dismissal, for sanctions, and so on. Here, you want the foreclosure suit to end in your favor and for the bank to be barred from suing you again. That’s a tall order, but that’s what you want, and you don’t get what you don’t request. In legal terms, you’d like a court to enter an order dismissing the foreclosure with prejudice on grounds that the bank failed to visit your home to off a loan workout within the 90 days allowed after they declared a default.
2. Determine the relevant facts.
Determine which facts in your case are relevant to the order you want entered. They don’t have to be the underlying facts, the ones that created the case. They can be procedural facts, the various motions and orders that have led up to this point in your case.
Here, the bank never even alleged in the complaint that they sent someone to your home or that they met the preconditions to filing suit.
- Supporting Fact 1: You’ve got an FHA mortgage loan and the note requires compliance with HUD regulations.
- Supporting Fact 2: The mortgagee, your bank, is required by federal regulations to visit your home to offer loan modification before they file a foreclosure lawsuit against you.
- Supporting Fact 3: No one from the bank visited your home.
- Supporting Fact 4: The bank’s complaint did not even allege all preconditions to filing suit had been met.
3. Provide evidence for the facts.
You’ll want to now provide evidence for the facts. That is, you have to show that the Supporting Facts are true. That evidence should arise out of your discovery and reading of the complaint. You’ve done your discovery and the plaintiff bank, which has the burden of proof, is unable to produce evidence that it sent a representative to your home. In fact, the bank acknowledges that it neglected to send someone to your home.
4. Find case law to support your order.
Find appellate opinions that most closely mirror the facts in your case. If the facts are similar to yours, they are more likely to be relevant. Stick with cases in your jurisdiction, if possible. So let’s say you’re in Florida, where an appeals court reversed a foreclosure based on the bank’s failure to visit a homeowner. Eureka!
But if you’re in New Mexico, you may not be so lucky. Sometimes, opinions outside the jurisdiction can be persuasive when you can’t find opinions on point from your own jurisdiction.
5. Argue your motion in court.
Your motion to dismiss will likely require a hearing in court. At the hearing, you’ll argue that the court should dismiss the complaint against you because an allegation that preconditions to filing suit were met are necessary to a foreclosure suit. You’ll argue that the bank never alleged in the complaint that it had sent someone to your home, or even that it had met the preconditions to suing you.
Finally, show the judge that the opinion of appellate courts requires a ruling in your favor. Answer the question — Why must the judge dismiss the claim against me? Tell the judge what the law requires by describing and citing to case law with facts similar to those in your case.
6. Give the judge your proposed order.
In your proposed order, state a barebones version of the facts, the evidence proving them, and the law. Combined, these should be the court’s findings. The proposed order should show why the court has come to the same conclusion as appellate courts, and of course it should grant your motion.
The judge now has all the reasons necessary to rule in your favor. According to appellate courts, the facts, the evidence, and the law all support your position. So the court has to enter an order granting your motion to dismiss.
Works For The Opposing Side, Too!
If you are opposing a motion, you want to show the court why it must not do what the movant — the party filing the motion — argues for. You want to show why, using the exact same procedure, the court should come to a different conclusion and deny the motion.
That’s how to get a judge to enter the order you want. Share your thoughts in the comments below.