In an earlier post, I wrote about the process where litigants ask a judge to do something. This is accomplished by “making a motion,” which usually begins when a litigant files a “notice of motion,” informing the court and others of the request. But some motions need to be decided in a hurry, or the law that allows the motion requires a special procedure for the motion. In those situations, some courts allow litigants to present an “order to show cause” instead of a notice of motion.

Why should you read this post about orders to show cause?

You want to see how courts can make a simple request where time is tight into a complicated procedure that’s hard to keep straight.
You saw a statute that requires an order to show cause and no one taught you what that means and you’re panicking.
You got a handwritten court order and you want to know if that could possibly be real.

Image credit: https://en.wikipedia.org/wiki/Injunction#/media/File:Microcosm_of_London_Plate_022_-_Court_of_Chancery,_Lincoln's_Inn_Hall_edited.jpg

How Drafting and Filing Orders to Show Cause Works

First, it is helpful to see what an Order to Show Cause looks like. Here is one that was publicly filed in New York.

To get an order to show cause, movant will typically file a supporting affidavit and often a memorandum of law, explaining why she is entitled to relief. But instead of filing a “notice of motion,” the movant will draft a court order for a judge to sign right away. And the court order will say how the movant must notify the opposition of the motion, when the responses are due, and when (if at all) there will be a hearing with the judge to discuss the motion. The order may also explain what temporary relief will be in place before the hearing.

Some courts let parties file these papers electronically. But some, since the motion needs to be decided right away, require the parties to physically go to the courthouse and deliver the papers and then wait to hear from a judge in the building.

When To Use an Order to Show Cause

The principal use of an order to show cause is when the movant needs relief right away. Bringing a motion by notice usually gives the other side weeks to respond and sets no real deadline for the court to make a decision. If the movant cannot wait weeks, she may submit an order to show cause, asking the court to set tight deadlines for a response and to make a decision.

Some laws specifically state that motions invoking them must be brought by order to show cause. This may ensure that the non-moving party has adequate notice because the relief invoked by the law is serious, such as an eviction.

What Happens After Filing an Order to Show Cause

Sometimes a court clerk will review the papers, speak to the judge privately, and then come back to the party to inform them of the judge’s order.

Since judge’s are often very reluctant to interact with any party without hearing from the other side, judges are often reluctant to grant relief unless there is a real emergency. As a result, judges will often hand write on the proposed order their edits or cut out entire sections, limiting the order to what they are comfortable doing having only heard from one side.

After the judge issues the order, the moving party serves the order and the non-moving party has a deadline to respond (or at least come to court). Then after, the judge hears from both sides, a new order that supersedes the order to show cause will make a full decision on the motion.