I see A LOT of what I call “fixit” court orders: orders directing parties to fix something or to do something. What really surprises me is the number of show cause orders entered when the parties don’t comply with the first order. If you think this doesn’t apply to you, read on.
I wonder whether attorneys are aware of how frequently they are the subject of fixit orders or show cause orders. If they are, why do they continue to ignore (or allow staff to ignore) court orders? If they aren’t aware of it, shouldn’t they be so they can take corrective action?
Here are some simple tips to help attorneys identify and prevent some common recurring errors:
First, determine if you have a problem. For debtors’ attorneys, spot-check the docket in a few cases you’ve filed within the past six months. Creditors’ attorneys, look at the docket in some cases in which you have recently filed motions or objections. If you’ve had one or more fixit orders (or heaven forbid, show cause orders) in several cases, you have a systemic problem that needs to be fixed. You and your staff are wasting time and money.
Second, review your procedures and make sure you and your staff have a basic understanding of certain local rules and the administrative procedures manual. Make a checklist, or print and highlight relevant provisions of the local rules if you have to. To avoid some common fixit orders, you should know, at a minimum, that:
- You must attach a proposed order to every motion (or objection if that’s the form of your initial request for relief);
- If a motion is filed on notice and opportunity (N&O) and you object to the motion, you have to notice your objection for an actual hearing (date, time, and location);
- Whenever you do a notice of hearing or N&O, the hearing date or deadline for objections that you put in your document must match the hearing date or deadline for objections you enter in ECF;
- You have to give at least 14 days’ notice on all motions or objections, unless:
- There is a longer period required in the federal rules;
- You file a motion to shorten the notice time; or
- Your request is listed in KYEB-LBR 9013-1(c) as one that does not require notice;
- When you file a chapter 13 plan, you must serve it on all creditors and file a certificate of service.
Add to your checklist that the “Chapter 13 Order to Debtor to Turn Over/Produce Documents” entered in every case requires documents to be provided to my office within 14 days of the petition. This is a court order and should not be disregarded, even if you are not “show-caused” for failure to comply.
Third, implement a procedure for promptly dealing with all orders and make sure everyone in your office is aware of the importance of complying with orders of the court.
- Understand that many docket entries are in fact court orders.
- The docket text will say “This Notice of Electronic Filing is the Official ORDER for this entry. No document is attached.”
- If you or your staff think that’s not a “real” order (and more than one attorney has told me that!), pretend you are standing in the courtroom while the judge is reading that docket text to you. Then respond accordingly.
- When you get any order, read it immediately. If it applies to you or your client, calendar the deadline, and do what the order says before the deadline. If you need more time to comply (particularly if you are waiting for information from your client), file a motion for an extension of time.
- If you get a show cause order for failing to comply with the first order, fix the problem immediately, file a response, and show up for the hearing (unless the matter is remanded). If you get a show cause order for failing to show up at a show cause hearing, you’ve got a huge problem.
Of course, deadlines get missed on occasion. Clients don’t always do what the attorney tells them to do. Spam filters eat ECF notices. A key staff person gets sick and the email inbox gets overloaded. Mistakes happen. But take steps to prevent recurring mistakes, which are time-consuming (for all of us) and costly.
Try to get things done correctly and timely the first time. Use checklists. Calendar deadlines. Train staff. Read and follow the rules. Do ECF training again if necessary.
But if you get an order to do something, even if it starts with “Deficiency – Action Required,” comply with it.