Litigation Strategy New Lawyers

Go Formal When Drafting Your Judgment

136727429When you win a judgment in your client’s favor, it’s not the time to go casual; instead, draft your judgment with the formalities that will make it valid and enforceable.

Although there’s no required form for a judgment, a judgment has to show that the issues raised in the action have been determined in favor of one of the parties. A basic requirement for all judgments is that it be certain. As the court in Imperial Cas. & Indem. Co. v Sogomonian (1988) 198 CA3d 169, 243 CR 639 stated:

Whatever the nature of a judgment, it must be sufficiently certain to enable the prevailing party to enforce it and to permit the defeated party to comply with the judgment’s requirements.

To show that certainty, make sure that the judgment includes all of the following formal requirements:

  • Identify the parties. The judgment must clearly specify (1) which party obtained the judgment and (2) the party against whom the judgment was rendered. When you draft the judgment, make sure that the name of each judgment debtor is recited fully and spelled correctly and that all aliases or fictitious names they use are shown on the face of the judgment.
  • Show the money (or not). For money judgments, show either that a certain sum is due to one party from another or that the plaintiff takes nothing. The amount of the judgment must be “computed and stated in dollars and cents, rejecting fractions.” CCP §577.5.
  • Let it ride solo. Avoid incorporating documents by reference in the judgment. Technically, any document may be incorporated into a judgment either expressly or by reference, but local court rules frequently prohibit this. And even they don’t prohibit it, you should avoid “riders” because they make the judgment incomplete on its face. If the incorporated document is lost or destroyed, the meaning of the judgment may be rendered fatally uncertain. Even if the judgment is based on a written stipulation that is already a part of the court’s files, the judgment should be drafted so that the terms of the stipulation are clearly recited on the face of the judgment itself. In the case of a stipulated judgment, restate the consensual terms of the stipulation as a directive (e.g., “Defendant shall…” replaces “Defendant agrees to…”).

You always want to make it easy for a court to enforce your judgment. Don’t let ascertaining the terms of the judgment become something other than what it should be: a ministerial function. Assume that enforcement of the judgment will require the cooperation of a court clerk who knows nothing about the judgment other than the terms appearing on its face.

For everything you need to know about drafting judgments, including sample judgment forms, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chapter 23.

Check out CEB blog posts on other aspects of litigation strategy.

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 replies on “Go Formal When Drafting Your Judgment”

This isn’t my area of practice, nor is it something that’s taught in law school, so I hope I’m forgiven for my lack of knowledge on this procedural topic, but…

Why do the parties have to draft judgments and orders? They’re issued by the court, so why doesn’t the court do it? That would make a lot more sense. And it would avoid disputes as to what the court actually ordered. Is it that the courts are too lazy to do even that much? I don’t mean to sound overly snarky, but really….it seems like the courts and their staff have arranged things in such a way as to do as little as possible themselves and fob off as much as possible onto everyone else.

Seems to me that at the very least, orders and judgments issued by the court should actually be, you know, ISSUED BY THE COURT. I.e., drafted by the court.

No: as a trial lawyer, I strongly disagree. The court relies (and should/must rely) on the parties to draft the most important document in the entire case: the judgment. The smallest error will make that judgment subject to an expensive appeal.

The best judges are so busy that they make many clerical errors. The Court DOES draft its Statement of Decision (after proposals from the parties) and that tells you what judgment the court is willing to draft. But having the court draft up the judgment itself (which can often be a much complicated statement than just “A owes B $100,000”) would do nothing except delay the entire case with endless rounds of “Motions to Correct Judgment”. The judge has to squeeze 200 hours of work into 60 hours every damn week. She doesn’t have time to sit and think “How can I help plaintiff’s counsel in making sure that his judgment is absolutely appeal-proof”.

Miles, you’re on the right track in that the judge will draft her own Statement of Decision. That’s her final statement of “here’s what I’m willing to give you”. But the actual judgment itself is so important, so easily messed up with a single missing word, that it would be malpractice for anyone to draft it but you.

Think of the judge like your mother offering to buy you furniture for your first apartment. Her Statement of Decision tells you what she’s willing to get you (a bedroom set but not the dining room table). But you don’t want her actually picking out the specific furniture. You want to go to the furniture store yourself and pick that out. Just like I buy my wife a shopping spree for her birthday, but only a foolish husband would try and pick out the dresses himself.

I have a question myself, something I still can’t figure out.
Let’s say the court’s Statement of DEcision finds that my client is owed $100,000 plus prejudgment interest beginning on June 1, 2009. I can’t guarantee exactly what date the judge will sign the judgment. How can I draft a judgment that will have a single number incorporating the principal + prejudgment interest. I’m tired of having to argue with the court clerk when I do an abstract of judgment and they don’t agree on my interest calculations. I’d rather just have a clean judgment number. Do I just add up prejudgment interest dating from the Statement of Decision and give up the interest between the SOD and the date the judgment is signed? How would a master attorney do it? I know there must be a simple solution, but I don’t know what it is…..

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