When a juvenile court has not made specific factual findings in support of its judgments, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence.
First, I must start with this disclaimer: I am not a judge and I have never written an order. Thus, my advice is, at best, as a second hand observer.
I have, on the other hand, been asked by judges to write proposed orders. This is not uncommon. At the close of trial, a judge might ask for proposed orders from any party who wishes to submit one. The judge might already know how he intends to rule. But, in the interest of fairness, the judge may ask for proposed orders from all sides.
As an attorney, if the judge uses your proposed order, it is an immense honor. After months of trial preparation, the rigors of trial, and the post-trial briefs and motions, almost nothing gives a legal team more satisfaction in their work than to read a judge’s final order – in their own proposed words.
Along with that high honor comes a high responsibility. If the order is overturned on appeal, the drafter of the proposed order should feel the weight of that loss. The judge relied on you to craft an order that would hold up on appeal. And you let her down.
Here is one tip for writing proposed orders that never gets old: brevity.
As advocates, we know about the power of brevity from sources like Justice Antonin Scalia in Making Your Case: The Lost Art of Persuading Judges:
The power of brevity is not underestimated … people tend not to start reading what they cannot finish.
The same conclusion is true for judges and their orders. A trial judge is writing their order to declare their decision, explain their reasoning, and persuade the would-be appellate court that their order should be upheld. With that in mind, here are three tips for drafting proposed orders:
- Don’t underestimate the ore tenus presumption of correctness. D.P. v. D.D.P., 950 So.2d 311 (Ala. Civ. App. 2006). As long as your order is not plainly and palpably wrong, the whole common law system functions by giving extreme deference to the lower court’s judgement. Therefore, less is more. Don’t feel like you need to over-explain your order.
- Less is more. When a juvenile court has not made specific factual findings in support of its judgments, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. C. v. Jefferson County DHR, 54 So. 3d 407, 413 (Ala. Civ. App. 2010).
- In addition, the juvenile court may consider the totality of the circumstances when making a finding in a dependency proceeding. C. v. G.D., 712 So. 2d 1091, 1094 (Ala. Civ. 1997).
The second of these tips is the hardest to implement: being as concise as possible with the findings of facts. As humans, we all have an impulse to justify our decisions. To write a good proposed order, you have to resist that impulse. In order to resist that impulse, you must have confidence in the ore tenus presumption of correctness.
To say this another way, when the trial court does make specific factual findings, the appellate court tells us that its hands are tied. The appellate court will only reluctantly overturn a trial court’s order that is light on specific factual findings when it states, “we must presume that the juvenile court made those findings necessary to support its judgment.”
________________ Article based on H.T. v. A.C. and Calhoun DHR, 2210396 and 22110397 (Ala. Civ. App. February 3, 2023)