WHAT, OH, WHAT SHALL WE DO ABOUT THE PROBLEM CHILD?
(Posted November 18, 2021) From time to time — not every week or even every month, but on repeated occasions — I get a question from a trial lawyer about the waiver-of-endorsement provisions in Rule 1:13. This is the rule that mandates endorsement by counsel of record of all orders, and then allows the trial judge the discretion to simply ignore the rule:
Drafts of orders and decrees must be endorsed by counsel of record, or reasonable notice of the time and place of presenting such drafts together with copies thereof must be served pursuant to Rule 1:12 upon all counsel of record who have not endorsed them.
Compliance with this Rule … may be modified or dispensed with by the court in its discretion.
The questions I get are surprisingly consistent. They almost always describe a situation where a judge has entered an order without providing advance notice or an opportunity for the lawyers to endorse, or provide input on the contents of, the draft. “The Court dispenses with endorsements of counsel pursuant to Rule 1:13.” Now the aggrieved lawyer wants to know how to object to the order, in a manner that’s sufficient to preserve the objections for appellate review.
It’s trickier than you think. Some judges may expressly permit lawyers to file objections within X days after entry. But given the terrifying ruling several years ago in Brandon v. Cox, filing objections with the clerk of court probably won’t protect you. The record must indicate that the trial judge had the opportunity to rule on objections; not merely that they appear in the record. If the lawyer files objections with the clerk but there’s nothing to show that the judge knew about them, then even timely, meticulous objections could turn out to be useless.
Hence this essay. I figure that multiple lawyers asking the same question — one that doesn’t have an obvious answer — merits discussion and a stab at providing a solution for the problems that arise in such situations.
We’ll start with the easy part. If the objections that you want to append are already in the record — in a motion, brief, or pleading, or in a transcript that someone has filed — and the judge has ruled on them, then you’re safe. Code §8.01-384 provides that you don’t need to repeat your objections, even in endorsements on the final order, once you’ve obtained a ruling. If that’s the case, you don’t need to do anything, because your objections are preserved.
But that’s cold comfort if the judge has inserted a nuance into the order that the lawyers hadn’t anticipated, or has issued a ruling out of the blue that no one saw coming. In that instance, the lawyer has to act.
The first and easiest approach is to contact the clerk or chambers and obtain a hearing date that falls within 21 days after the date when the judge entered the final order. You’ll then file your objections and a hearing notice, along with a letter to the judge, copying the clerk. In that letter, you’ll indicate that you need the court to enter an order ruling on your objections by the 21st day. I recommend that you bring two orders to the hearing. One states that the court has considered your objections and overrules them; the other says that the court agrees with you and orders whatever relief that ruling would entail. The odds are that the judge will enter the first one, but why give up hope?
One note of caution here: Don’t say to the judge, “I’m not asking you to change your ruling; I just want to protect the record.” We learned several years ago in Nusbaum v. Berlin that language like that won’t preserve an issue for appeal. Ask the judge to rule in your favor but say that you’ve brought an order for each possible outcome, and ask the court to enter whichever one fits the judicial ruling. Now you’re protected.
As is inevitable with simple solutions, some cases will produce problems even here. Maybe your judge rides circuit and won’t be back in your jurisdiction for a month. (You can bring your two orders to the next county, leaving a request with chambers that the court enter one or the other. The judge doesn’t have to be sitting in a given county to enter orders for its circuit court.) Maybe your Bad Guy intends to fight you and says that his trial calendar means that he won’t be available for a month. (You can and should ask for a suspending order that allows you time to schedule the hearing on a date that accommodates the rascal.)
Here are a few other ideas:
- Make a record of your attempts to get the judge to rule in a timely fashion on your objections. That can take the form of a motion to rehear or simply a motion for a written ruling on your objections, as noted above. The caveat on rehearing is that you can’t automatically get a hearing on that, per Rule 4:15(d); only the judge can order that.
- Be sure to state in writing your objection to the judge’s refusing to allow you an opportunity to get a timely ruling. I also recommend that you object to the judge’s using Rule 1:13 to dispense with endorsements, especially when issuing a ruling that no one anticipated. That may allow you to challenge the practice on appeal.
- Don’t assume that the clerk of court will follow through on presenting competing orders to the judge. Drop off copies at chambers along with an explanatory letter, mentioning that under Brandon, you need to secure court action within 21 days. You should address your correspondence, with copies of the motions attached, to the judge, delivering it to chambers, with a copy to the clerk of court. Doing this makes it clear that you’ve given the court an opportunity to rule on your motion, which is all that the preservation rules require.
- If your trial judge isn’t available within 21 days, you can always ask a different judge of the same court to enter a suspending order. Most judges won’t make substantive rulings in another judge’s case; but if you can explain to the court that you’re about to lose a legal right and you just want to preserve the status quo for a short time until Judge X can act, you may get a friendly ear.
- If you get nowhere with the judge, consider preparing a written statement under Rules 5:11 or 5A:8 that outlines your efforts to get a ruling on the objections. That way, the appellate court can see the efforts you’ve undertaken.
- You have one other avenue of relief under 8.01-384. That statute separately provides that if you had no opportunity to object to the court’s ruling, then you won’t be held to have waived the issue for review. I advise you to regard this as a last resort, but if the appellate court sees that the judge has slipped in a ruling and then has made himself unavailable for proper preservation, you may well get a favorable appellate reception.
While these ideas may help you to avoid a waiver in this situation, in my opinion the problem is deeper than that. Rule 1:13’s modify-or-dispense provision is a bad idea that the Supreme Court should remove from the rule. This problem child doesn’t deserve a spot in the rulebook. At a minimum, the court should amend the rule to provide that a trial court may not modify or dispense with the notice-or-endorsement requirement when entering a final order.
You think I’m overreacting? Let’s take a hypothetical to illustrate how this problem can go nuclear. Suppose a judge wants to avoid appellate scrutiny on a given case. Perhaps the jurist, in a rash moment, has done something out of anger at or frustration with a lawyer, and fears reversal and remand. (Trial judges don’t like reversals, but they really-most-sincerely hate remands.) Simple solution: The judge drafts and enters a final order that contains language dispensing with endorsement. He next opens a desk drawer, slides the newly entered order inside, and closes it.
Nine weeks later, with the parties waiting patiently for word on the ruling, the judge opens the drawer, removes the order, and hands it to the clerk of court for placement in the file. Under Rule 1:1, the date of entry of an order is the date when the judge actually signs the document. That’s now 63 days past. This means that it’s too late to file a notice of appeal (30 days after entry) and too late for relief under Code §8.01-428 (60 days). The aggrieved party is pretty much helpless; the only theoretical solution I can see is to file an independent action for relief from a judgment, also under §8.01-428. That’s a real long shot.
Perhaps you’ve concluded that I have a hyperactive imagination, or a bad case of paranoia. Maybe. You think I should trust trial judges to do the right thing? I do, almost always; the overwhelming majority of them are conscientious public servants. But the Judicial Inquiry and Review Commission will confirm that a tiny few of them aren’t. And even without the sinister tableau of my hypothetical, some trial judges simply may not know that, in exercising a right that the rules expressly give them, they’re depriving litigants of a meaningful right.
As lawyers, we need to anticipate adverse developments, prepare for them, and be ready to act. This essay should help you if you find yourself in this difficult position. You want the appellate court to understand that you did everything humanly possible to preserve your appellate issue.
A note of thanks: Some of the suggestions above come not just from me; several of my pals in the appellate guild, including Kyle McNew, Monica Monday, and Norman Thomas, offered creative solutions that have gone into this essay. (The sinister hypothetical comes from me alone. Don’t blame them.)