United States: A Day That Will Live In Exigency: The (Over) Use Of The Order To Show Cause

Last Updated: March 21 2013
Article by Seth R. Parker

I recently read a quote from Joseph Addison, an eighteenth century British author, which said, "Husband a lie, and trump it up in some extraordinary emergency." It lead me to consider how family law attorneys categorize the notion of an emergency, often with a mixture of histrionics and hysteria, in contrast with how the rest of the world does.

In the world of family law, emergencies are governed almost exclusively by the filing of the well-conceived and ill-named Order to Show Cause. R. 4:52-1 of the New Jersey Court Rules governs the filing of an Order to Show Cause in most scenarios in Family Court, when we are seeking temporary restraints or injunctive relief. It addresses the standard for filing an emergent application, which we all know by heart by now is, that immediate and irreparable damage will probably result to a party or the parties' child(ren), unless an Order is entered immediately.

As a former law clerk and current family law practitioner, I have a unique perspective on both the utilization and exploitation of the Order to Show Cause.  What was designed to ideally be filed judiciously and to address genuine emergencies is habitually used as a litigation tool to get our clients the instant gratification that they far too often seek. Fittingly enough, these applications filed to presumably accelerate a divorce proceeding often become the ultimate double-edged sword.

On one hand, the Order to Show Cause is often denied by the Court as being non-emergent and then converted to a regular motion because the relief sought can be adjudicated anytime given the advent of retroactive relief. This scenario invariably disheartens your own client, and leads them to believe that their particular issues are not a priority. Despite your best efforts to illicit empathy for their fellow litigant, they rarely have appreciation for the twenty other matters already scheduled to be heard on that day. In addition, the principle of judicial economy often falls on deaf ears because their neighbor's Order to Show Cause seeking credit for the principal pay down of the mortgage was heard and granted yesterday. And, of course, they were awarded counsel fees for filing it as well.

On the other hand, when the OTSC is in fact successfully heard, there is always a short return date for the opposing party to set aside the relief emergently granted. This inevitably leads to the submission of a Cross-Order to Show Cause, wherein separate and unique emergencies have remarkably also arisen for the opposing party, which normally manifest themselves as, "If (s)he doesn't have to wait, neither do I."

That application is then immediately followed by the synchronized filings of dueling Reply Certifications, which then inevitably leads into the beloved argument about the validity of the submission of a Sur-Reply. This exchange is presupposed by the mantra: "You must have the last word, even if the Court never considers it or the Rules do not allow for it." Unfortunately, either option only further polarizes the parties and regularly delays an ultimate resolution of the matter unless an actual emergency has arisen.

This realization exposed for me the quirky and sometimes idiosyncratic ways that Judges have begun to deal with the frequency at which practitioners are filing these applications. As a practical application, we have had to reluctantly hand the still-warm, emergent application to the beleaguered law clerk and been peppered with the question, "How is this emergent?" You stammer through a few sentences trying to condense a fifteen page certification into one single sentence that justifies why this must be heard immediately. You often can not do so convincingly for obvious reasons.

At that point, it is up the Court to determine how genuine your client's alleged emergency is. Some think this determination is based upon the severity of the crisis. Others think it is based upon the volume of the Court's then calendar. To that end, we have all heard the urban myths about the OTSC, "Financial issues cannot be emergent", "If you write more than five pages it can not be emergent", or  "Do not file it Friday at 4:00 if you want it to be heard." These discretionary peccadilloes demonstrate how the courts have begun to insulate themselves from the abuse of this application.

For example, a Judge recently told me that for her to even consider an Order to Show Cause, the application must be accompanied by a letter brief. If there is no letter brief, she will deny the application on its face and convert it to a regular motion. I imagine if you have time to search Westlaw prior to submitting an Order to Show Cause, your client's alleged emergency may have been misdiagnosed, which is akin to watching someone use a rolling walker that contains handbrakes.

Although the letter brief requirement is actually addressed in 4:52-1 (c), I have never heard another Judge reference it in connection with the filing of an Order to Show Cause. Further, the rule does not specify if a brief must be submitted prior to the return date or on the initial date of filling. In addition, such an obligation is conspicuous from its absence in the pro se applications for an Order to Show Cause. All we want is consistency...

In addition, I have had another Judge tell me that if I want to file an Order to Show Cause before him, I have to send him a letter in advance and seek his permission to file the OTSC. If I do not get his permission, he will deny the application on its face. Once again, if it is a genuine emergency, I do not believe I would have time to correspond with the Court before filing it.

While neither of these positions are explicitly codified by the Rules of Court, they clearly demonstrate the great discretion and lack of uniformity that the Courts exhibit in determining what is truly emergent. At the very least, it would behoove your client to ask themselves if they called 911 or DYFS rather than their attorney with the same alleged emergency if they would even get a call back, before authorizing you to file an Order to Show Cause. Either way, if you exercise the appropriate discretion when filing an emergent application and avoid crying wolf, you will certainly have far more credibility with the Court the next time a genuine emergency actually does arise in one of your cases.

www.foxrothschild.com

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