Many judges lack the staff and the time to prepare court orders, and thus it is not uncommon for the lawyer for the prevailing party to prepare a draft order for the court. Usually this happens without any problem – the lawyer who is asked to draft the lawyer does so correctly and, if the opposing lawyer (or judge) has a criticism of the draft there is a local practice or rule on how to address the issue.
Likewise, it is not uncommon after a trial for a judge to ask the lawyers for the parties to prepare a proposed order setting forth findings of fact and conclusions of law for consideration by the court. Some lawyers even prepare such draft orders without being asked. Is it appropriate for a lawyer to submit such orders and for a trial judge to sign them?
It is certainly not inappropriate to submit such orders, but the appellate courts look at such orders very carefully. Here is the most recent example of how the appellate court approaches this issue:
The practice of allowing litigants to prepare orders with proposed findings of fact and conclusions of law has been permitted but often cautioned against. Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 315-16 (Tenn. 2014) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985)); see also Delevan-Delta Corp. v. Roberts, 611 S.W.2d 51, 53 (Tenn. 1981) (expressing a preference for findings prepared by a trial judge’s own efforts). Our Tennessee Supreme Court has previously discussed the main concern of such a practice, highlighting “the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has ruled in their favor.” Lakeside, 439 S.W.3d at 315 (quoting Anderson, 470 U.S. at 572). The adoption of a party-prepared order may constitute reversible error when the findings do not accurately reflect the trial court’s decision, and the record must not create doubt that the order, in fact, represents the “trial court’s own deliberations and decision.” Lakeside, 439 S.W.3d at 316.
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While asking parties to prepare orders is not, in and of itself, necessarily problematic, see id., here the record does not reflect that the trial court provided any independent decision for Father’s order. Moreover, the record indicates that the trial court later signed and entered Father’s order without any modification. While our review of the record reflects that the trial judge instructed Father’s attorney to include a finding of “codependency” and to draft the order according to the relevant statutory factors, no other guidance or instructions were given. Moreover, the record reflects that the trial judge did not render oral rulings as to the findings it wished to make regarding the referenced statutory factors, nor did it actually even provide a specific ruling as to which party should be designated as the primary residential parent. Insofar as the transcript admits, the judicial task of providing a basis for the court’s ruling (itself then technically unpronounced) was essentially delegated to Father’s attorney.
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Suffice it to say, based on our review of the record, there is serious doubt that the order underlying this appeal does not in any respect represent the trial court’s independent judgment. See Cunningham v. Eastman Credit Union, No. E2019-00987-COA-R3-CV, 2020 WL 2764412 at *5-6 (Tenn. Ct. App. May 27, 2020); see also Mitchell v. Mitchell, No. E2017-00100-COA-R3-CV, 2019 WL 81594 at *7 (Tenn. Ct. App. Jan. 3, 2019).
Sykes v. Cox, No. M2022-00970-COA-R3-JV at *2-4 (Tenn. Ct. App. Dec. 20, 2023) (footnotes omitted).
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