Litigation is adversarial. The inherent conflict means that most lawsuits involve parties who don’t like each other, and there’s a natural tendency to refuse to budge on anything. But sometimes, in the midst of this systemic friction, it makes sense to reach agreements with the opposite side, particularly on procedural matters. Most lawyers don’t want judges to think they are obstinate or obstructionist on trivial issues. When the time comes to agree on something, is it better to file a stipulation or a consent motion, or reach a private agreement without involving the court?
A stipulation is a simple document filed with the court in which opposing parties agree to something and affix their signatures to memorialize the agreement. Parties can stipulate to all sorts of things — like the existence of a fact (the car is red), admissibility of evidence (the document is authentic), or the extension of a deadline (plaintiff shall have a two week extension to file an objection). A stipulation by itself doesn’t necessarily ask a court to do anything. Parties can file a stipulation with the court simply to alert the judge that they’ve reached an agreement on something.
A consent motion requests the court to take an action, but it is unlike most motions because the parties have agreed beforehand that the court should grant the requested relief. Consent motions are filed with the court and can take several forms — they can be “Unopposed Motions” in which one party files the motion and alerts the court that the other side does not object (sometimes a party won’t agree to a motion, but it also won’t object); “Assented-to Motions” where one party files the motion and tells the court that the other side agrees with the request for relief; or the gold standard of consent motions, the “Joint Motion,” in which both sides affix their signatures to the motion and ask the court to grant the requested relief.
Private agreements are just that – private understandings between the parties that are not filed with the court. They take many forms – a phone conversation, e-mail strings (“can I have 2 more weeks for that brief?,” “yes”), or more formal written documents. The most formal private agreement is the settlement agreement that resolves a case. Usually the settlement agreement is not filed with court except in Family Court cases or class actions. Instead, after signing the settlement agreement and performing important tasks like the payment of money due under the agreement, the parties file a simple dismissal stipulation that says the case is dismissed, with each side bearing its own costs, attorney’s fees, and waiving rights of appeal. The court then enters the stipulation as an order and the case is over.
What are the pros and cons of the different ways to memorialize an agreement with a court adversary? It depends on the situation and the forum.
The Rhode Island Federal District Court
In the local federal court, the United States District Court of Rhode Island, each judge has a case manager who watches the daily filings (apparently like a hawk) in all of the judge’s cases. If the parties in a case file a stipulation on the federal court docket, there is a reasonable probability that the federal district judge will “enter” the stipulation by “text order” shortly after the stipulation is filed. The judge’s entry of the text order on the stipulation means the stipulation has become an enforceable court order. If one party violates the terms of the stipulation, that party can be subject to civil or criminal contempt proceedings just as that party would be for violation of any other judicial order.
Consent motions can accomplish the same thing as stipulations, but they usually take longer. Under the local federal civil rules, an opposing party has 14 days to file a response to a motion. There is no requirement to set a hearing date for a motion in federal court, and motions can be granted at any time, but if the case manager for the federal judge, or a law clerk or the court itself doesn’t realize that the motion is unopposed, the court might wait out the 14 days to see if the opposing party files an objection. A typical example of a consent motion is a request for an extension of time. It’s not uncommon for a party to ask for additional time at or near the deadline. If a party files a consent motion in this circumstance, it might not know until after the deadline has passed whether the court will agree to the extension. The litigant is likely to get a quicker answer by filing a stipulation, or making the consent motion a “joint motion” filed by both parties, so that it’s crystal clear that the court can act immediately without waiting for an objection. (Sometimes the federal court acts immediately anyway without waiting for an objection for simple motions like those to extend time, even if there is no indication the other side agrees, which can cause cognitive dissonance to the opposing party who planned to file an objection within the time allotted by the local rules).
Private agreements are fine in federal court if the court is not likely to act by an existing deadline. For example, asking the opposing party for an additional 30 days to respond to discovery can be accomplished by private agreement and there isn’t much valued-added to filing a stipulation or consent motion. If anything, stipulations on these sorts of things tend to clog the docket, and they really aren’t necessary unless one party believes another party is prone to skullduggery. In the ordinary case, if a dispute arises later over an extension to respond to discovery, a court is very unlikely to default a party if it represents that it sought and received an extension. Private agreements are dangerous, however, if the court is likely to act by a certain deadline and the parties try to move the deadline without informing the court. For example, if a party files a motion to compel, and the parties agree to give the opposing party additional time to file an objection but don’t inform the court, it’s likely the court will grant the motion after the deadline passes without opposition. Courts aren’t mind readers.
The difference between private agreements and consent motions can be important for more substantive agreements. For example, if the parties agree to a protective order to shield sensitive information from public view, a breach of the protective order will give rise to a breach of contract claim if the parties execute the protective order as a private agreement. But if the parties ask the court by motion to enter the protective order, it becomes an order of the court, and the judge has the authority to enforce it like any other order.
One final word on stipulations in federal court – they’re effective for the mundane everyday things like securing additional time to file an objection or a reply, but they are presumptuous when they’re used to amend larger or more substantive aspects of the case. Deciding when to file a stipulation versus a consent motion can be more art than science. For example, if the judge has set a deadline for the close of fact discovery, stipulating to resetting discovery deadlines might not go over well. A consent motion or joint motion that explains the basis for the request might achieve more success.
Rhode Island State Courts
Stipulations operate differently in the Rhode Island state courts. The state courts handle orders-of-magnitude more cases than the federal court, and they don’t have the resources to hire armies of case managers to watch the thousands upon thousands of case dockets. The upshot is that, unlike the federal court, if the parties file a stipulation in a state court case without filing a motion and setting a hearing date, it is highly unlikely that a judge will enter the stipulation and cloak it with the formality of a judicial order, unless the judge knows it’s coming — possibly because a hearing on the same issue occurred recently and/or the parties send a bench copy of the stipulation directly to the judge by mail or hand delivery.
Stipulations typically don’t have the imprimatur of judicial orders in the state courts; instead, they have the functional equivalence of private agreements. A state court can enforce a private agreement or stipulation, but there are limits to their enforceability just like any other contract, and entering into a stipulation/private agreement cannot vacate a valid court order entered earlier in the case. Lesiak v. Napolitano, No. 00-5485, 2003 R.I. Super. LEXIS 27, at *8 (R.I. Super. Ct. Feb. 21, 2003).
The rules for entering into private agreements are also stricter in state court than federal court. Under the state court rules, there are two exclusive ways to create an enforceable stipulation: by placing the agreement on the record before a judge, or putting the agreement in writing. Ruffel v. Ruffel, 900 A.2d 1178, 1185 (R.I. 2006). This is spelled out explicitly in Rule 1.4 of the Superior Court Rules of Practice, which says that “[a]ll agreements of parties or attorneys touching the business of the court shall be in writing, unless orally made or assented to by them in the presence of the court when disposing of such business, or they will be considered of no validity.”
Unlike stipulations, consent motions in state court that are granted do carry the imprimatur of an enforceable judicial order. However, unlike federal court, motions in state court must be filed and marked for a hearing at least ten days in advance. The hearing days on basic civil motions are fixed in Rhode Island Superior Court — in Providence, the Superior Court hears civil motions once a week on Thursdays; in Kent County, twice a month on the second and fourth Monday of each month; in Washington County, once a month on the third Monday of each month; and in Newport County, once a month on the first Monday of each month.
While some state court motions are granted by rule of court without the necessity of showing up for the hearing if the opposing party does not file an objection three days before the hearing, all motions must still be marked for a hearing, and even the rule of court motions aren’t granted until after the hearing date. (Rule of court motions are referenced in Rule 7(b)(3) of the Superior Court Rules of Civil Procedure, and includes things like motions to extend time, compel discovery, and amend pleadings).
As a practical matter, this means that consent motions will sit on the state court docket until the hearing date, unless a party seeks emergency or expedited relief. Since motions must be filed at least 10 days before a hearing, and motions in Newport County and Washington County are heard only once a month, this can lead to considerable lag time before the parties have an enforceable court order in state court.
There is one sign that state court practice is changing. Recently, the Superior Court started sending electronic notifications to parties to alert them when a judge enters an order in their cases. Could judicial entry of stipulations without the necessity of a court hearing be far behind? Time will tell.