Forward-Looking Order Language #15
Definition
Strategy technique
Language in the proposed order or memorandum that preserves the current determination for later stages of the case, so that a finding made now remains available to the court on related future applications. The present record carries forward instead of having to be re-established each time.
Example
"ORDERED that this determination shall be considered by the Court in connection with any pending or future discovery application by either party." Every future discovery application — by either side — is then read against the non-compliance finding already made.
Anti-pattern
"This Order shall serve as a permanent finding that Respondent is in default and shall control the Court in all future proceedings." (overreaching, invites denial)
Requirements
- The proposed order contains forward-looking language
- Future applications by either party are informed by the current determination
- The current finding remains on the record for later applications by either side
- The forward-looking quality is structural, not argued
Ethical boundary
Forward-looking order language is proper when it ties to relief the court can actually grant on a real record. It must not become a vehicle to burden the opponent. Language whose only function is to raise the opponent's cost of litigating, untethered from genuine relief, risks sanction under 22 NYCRR § 130-1.1. Draft to the determination, not to the opponent's conduct.
Deployment note
Order language that pre-commits the court's future discretion invites resistance — courts guard their own latitude. Strongest as a modest, rule-anchored recital the court would have followed anyway, not as a binding future finding.
Counter (opposing view)
Opposing counsel may ask the court to strike the forward-looking language as advisory or premature, and a court guarding its own discretion often obliges — leaving the order without it. The recital survives only if it is modest enough that striking it would seem petty.