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The Professor Nedley Series
The Basic Show Cause Hearing
Where to Stand, What to Do and What to Say
April 1, 2008
In the typical Family Law case the OSC (Buzzword for both a Noticed Motion and an Order to Show Cause Hearing) is the staple for moving the case along toward a conclusion. OSC's are used for almost every litigable issue know to the dissolution process. An OSC may be used for the simplest of issues such as getting the judge to sign an order that needs signing all the way across the spectrum to trying the most important issues of the case such as the custody of the minor children. It is the most important tool in the lawyers "Tool Kit" and for the litigant that has ventured into the never never land of being a "self-represented litigant" it is critical to learn to do these motions simply and properly to accomplish your most important objectives.
First, to clarify the terminology "OSC" and "Noticed Motion".
The OSC: An OSC by definition is an ordered hearing and it is used when it is critical to establish personal jurisdiction over the party to whom the motion is aimed. It simply says "You are ordered to come before the court to show cause why the court should NOT make the requested orders". A true OSC must be personally served on the person being ordered to come before the court. This would most commonly apply to the very first hearing in the case where no en personam (personal) jurisdiction has been yet established by some form of Due Process. The second instance is the filing of a contempt action. It has been determined that if you seek to prosecute and jail a person for some act that is contemptuous of the court's prior orders that the notice of that hearing must be personally served in order to secure the necessary personal jurisdiction.
The Noticed Motion: Once a party has generally appeared in the case and personal jurisdiction has been established through service, a response or by agreement then ALL motions except the Contempt motion must be conducted by the Noticed Motion process. The noticed motion simply says "I'm giving you notice that on a given date I'm going to ask the court to make certain orders". In a classically handled case it would be deemed improper to serve an Order to Show Cause on the other side or their attorney once they have generally appeared. Mail service is all that is required. Worried that service by mail will be denied, it's OK to service the Noticed Motion by personal service, if there's an attorney (and not one of those "bundled" attorneys) then you must serve the papers on the attorney, NOT the client.
Post-Judgment Motions: So the Professor doesn't mess you up, ALL initial post-judgment motions MUST (unless otherwise clearly agreed) must be initiated by and Order to Show Cause personally served on the individual NOT on the attorney. Good and courteous practice dictates that you serve a party's attorney with a courtesy copy clearly marked as such and usually with a note of explanation attached.
| Basics of the OSC: An OSC should be where you - Stand up Grasp the podium firmly Using good grammar Tell and interesting story In a pleasant non-combative manner Within the total time estimates that you've given
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If it's an agreement you'll need the Pro Pers signature. If it's argued then you need to ask to "Submit the order without approval". If you withdraw as counsel, the Professor is of the opinion that you have a professional obligation to review and approve any order at which you attended as counsel. |
What Should the Client Do? During the
hearing the client should - Sit still - absolutely still - Not a twitch They should not nod their head in agreement with the Judge Do not let them tug on your sleeve (Especially if it's a nice fabric) Not offer any helpful ideas (If you haven't got 'em yet that odds are not too good at this stage of the game)
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| The Procedure: During
the process of the hearing do your best NOT to wrangle with opposing counsel
or the Pro Per. Talk to the Judge only. Remember the moving party gets to go first, then the responding party, of course, responds. After the response, the moving party may rebut WITHIN THE SCOPE of the response Then you both STOP arguing. NO you don't get to respond to something that the Moving Party has said. Even if it was mean. If they brought up new stuff, you should've objected.
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At the
Conclusion: These are the little things that make your life simpler Bring your calendar or whatever gadget you use these days so that you yourself can actually do a continuance right then and there. Ask for a Statement of Decision if it's authorized under the code. A good judge even if they deny the SOD will set forth their reasoning on the record. Clarify what the order is as against what was requested in the Request for Orders
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The Order: Follow
the rules (Local
Rule 5.11.2) on getting the order done. The Court should designate
someone to prepare the order. Volunteer if you have good staff, otherwise
it's the moving party. Within 10 days (I'd do it within 10 hours)prepare the draft or within 5 days order the trancript, Prepare the order within 7 days of the receipt of the Xcript. In this day and age of technology and a decent lawyer on the other side. I'd send the draft over for suggestions and corrections. Use the color of paper designated by the jurisdiction. File the darn thing, because it's not effective until filed with the court.
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