Poorly Drafted Orders Waste Time

This is a bit of a rant, but bear with me.  First, for those not practicing in civil side of the Eighth Judicial District Court in Nevada, it is rare that a district court judge will write an order.  Instead, the judge typically assigns that task to one of the attorneys, typically whomever is the substantially prevailing party.  Then the prevailing party proposes the order to the losing party, and somehow an order is eventually submitted.  The whole process is a bit ridiculous and, worse, the Ninth Circuit says the drafting attorney could be sued for it in certain circumstances.[1]

More often than not, whenever I receive a draft order or opposing counsel’s comments, it is something to the effect of “having considered the merits of the parties’ arguments, the motion is” granted or denied.  That is all.   I have had attorneys refuse to approve orders that say anything else.  There is an elementary problem with this that Nevada’s appellate courts have noted.

The most recent ruling of which I am aware addressing it was the unpublished disposition from the Court of Appeals in Engler v. Fisher.[2] The district court dismissed the case for failure to file a timely joint case conference report.  This is a relatively well established area of Nevada law that should not plow any new legal ground.

Nevertheless, the district court dismissed the case for failure to timely file the case conference report without making any findings as to appellant’s arguments relating to the factors articulated in Arnold. In the absence of such findings, we cannot conclude that the district court properly exercised its discretion in dismissing the underlying action.  See Jitnan v. Oliver, 127 Nev. 424, 433, 254 P.3d 623, 629 (2011) (“Without an explanation of the reasons or bases for a district court’s decision, meaningful appellate review, even a deferential one, is hampered because we are left to mere speculation.”).

The case was reversed and remanded so the district court could presumably enter an order that actually explained why it ruled in the way it did.  After that, presumably the aggrieved party would file a second appeal and begin the long wait for another appellate decision.

The moral of the story is that orders need to sufficiently explain why the court ruled the way it did, otherwise the order is pointless.  Even where the judge explains the ruling on the record and a transcript is available, remember the written order is the actual, appealable document.  What the judge said might be helpful, but it probably will not overcome the written decision.  Please do not waste my time or yours with perfunctory, worthless orders.

[1] Burton v. Infinity Capital Mgmt., 753 F.3d 954 (9th Cir. 2014).
[2] No. 69546, 2016 Nev. App. Unpub. LEXIS 363 (Sept. 27, 2016).