One of the nice parts of having been a judicial clerk is that I have an inside view of what happens behind the scenes in the courthouse. I often rely on this background when trying to explain to a client or a potential client why something happened in their matter or when it is time to start worrying about something that the Court has or has not done.
These are some of the more common questions and remarks I hear from people:
- I tried bringing this up years ago and the judge wouldn’t listen to me! OR When my ex brought this motion, the judge made a decision without even giving me a day in court!
Most of the time when someone I’m doing a consult with tells me that they have brought something up before the court before but the “judge wouldn’t listen” or that the judge “just did something without even giving me a day in court,” this is why: when the original motion or application was brought before the family judge, they thought to themselves that they didn’t really need to file a response or a cross-motion or cross-application because they would ‘get their day in court.’ Then, either the judge decided the matter on the papers—which they will often do if nothing is filed in opposition—or they held oral argument, but would only let the person talk about things that related to the other person’s application. Under Court Rules, a judge can decide a matter “on the papers”—which means without holding oral argument—if nothing is filed in opposition and they do not otherwise feel oral argument is necessary. And, also under Court Rules, the judge should only consider issues that were raised in the parties submissions to the court beforehand.
There are, of course, exceptions…but you should NEVER count on being one! If you want something, or you want the judge to consider your side of the story, you should file a cross-motion or a response in advance, in accordance with Court Rules!
- The Court never did X, Y, or Z, so the judge must have decided that…
Potential clients often come to me with theories about why the judge who has been hearing their case has not done something. Usually this is based around something the judge said or did in a prior hearing, and the fact that as far as the potential client can tell, nothing ever happened with it. They take the inaction of the court to mean that, secretly, a decision was made that was never told to them.
It’s very risky to assume that inaction on the part of the Court is the result of a deliberate, reasoned decision on the part of a judge. Typically when a judge has decided NOT to do something, he or she will let the parties know and give reasons why.
There are lots of good reasons why the court may choose not to act yet that don’t reflect a decision on the part of the judge. Perhaps there is some procedural reason why they can’t act yet. Perhaps they requested additional information from the litigants that they have not received yet. Perhaps they are waiting on other parts of the case to occur before they make a decision. Perhaps they were merely speculating on something that never came to pass!
Inaction means the court has not acted. It does not mean that the judge has secretly already made a decision and hasn’t bothered to tell anyone. If you feel the court did not address something, you should follow up with the Court—or have your attorney do so on your behalf!
- It’s been three days and the judge hasn’t made a decision yet! What’s taking so long?!
As with inaction on the part of the court, there are many reasons why someone may not get a decision as fast as they would like. Some cases are very tricky and involved, and take more work than others. Sometimes the judge is in the middle of a trial in another matter that is taking up most of his or her time at the moment. While every judge I have ever seen takes their responsibility to get a decision out in a timely manner seriously, ‘three days’ may not be a reasonable definition of ‘timely.’ There were some very big decisions I helped my judge work on when I was his clerk that he had to think about for a week and then took a week or more of work on the Memorandum of Decision and Order before they were ready to go out!
Having counsel makes the waiting process to more smoothly. Attorneys typically have a good sense of how long a case of this kind, before this judge, in this county will take before a decision is rendered and therefore when they should start inquiring as to the status of the case. In addition, a well-crafted motion and a skillful presentation at oral argument makes it easier for a judge to make a decision.
If you have questions about court procedures in your legal matter, give us a call at 856-227-7888 or contact us at [email protected] to schedule a free consultation. We are happy to explain what may be going on and discuss your legal options.
The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.