People sometimes send us their final orders for review before submitting them to opposing counsel or the trial court. We’re always glad to help, but I find that I’m often giving the same 3-5 comments over and over again.
In fact, those 3-5 comments are probably the only remotely intelligent things that I have to say on the subject. Here they are, in no particular order:
- Make sure that the order is final. Generally speaking, a final order disposes of the whole subject, gives all of the relief contemplated, and leaves nothing to be done by the trial court–except, maybe, to attend ministerially to the execution of the order. E.g., Comcast of Chesterfield County, Inc. v. Bd. of Supervisors, 277 Va. 393, 301, 672 S.E.2d 870, 873 (2009). This rule can lead to some weird results. An order that merely sustains a demurrer without dismissing the case, for example, is not a final order. Bibber v. McCreary, 194 Va. 394, 395, 73 S.E.2d 382, 383 (1952). Also, it doesn’t hurt to clearly label the order “Final Order.”
- Where appropriate, attach the transcript or letter opinion and incorporate it by reference. If your order concerns a ruling that the trial court made from the bench or in a letter opinion, consider attaching the relevant pages to the order and incorporate them by reference, or quoting the pertinent language in the order. Any other process risks devolving into a competition where you and counsel each try to “improve” the trial judge’s wording.
- Beware of trial judges bearing gifts. Trial judges sometimes try to accommodate counsel by attempting to stop the running of certain appellate deadlines. There’s an entire jurisprudence full of these failed efforts. I’ll save you some reading: all that a trial court can really do to toll the running of the notice of appeal deadline is to modify, vacate, or suspend a final order within 21 days of its entry. If you ask the judge to do that, make sure that he or she uses the magic words from Rules 1:1 and 5:5(b).
- Preserve everyone’s objections. Although it’s not strictly necessary, I generally include language either in the text of the order or above the endorsements of counsel making it clear that all parties have preserved their objections. This saves time by heading off frivolous arguments that someone has waived an appeal point because his lawyer did not place the magic language above her signature. (Obviously, if your opponent’s case has a legitimate waiver issue, you might want to tread carefully here.)
- Set up the suspension bond. I also like to include language putting the parties on notice that the losing party in the trial court can file a suspension bond and setting the amount of that bond. See Va. Code Sec. 8.01-676.1. A year’s worth of interest on the judgment at 6% seems like a reasonable amount to me, although I could see an argument for 18 months of interest. Again, this is not strictly necessary, but it saves trouble down the line.
See? That’s not so bad . . . and it only took me 11 years of getting this stuff wrong to write that list.