Continued from Claims and Issues Blog, Monday, January 7, 2019.
How proposed orders have worked in the past. In all systems of justice in the United States, whether in the federal system or in any one of the State or other systems, judges have made rulings and lawyers have written proposed orders which are supposed to correctly reflect those rulings. The lawyers send their proposed orders to the judge, who reviews them to see if they accurately reflect her rulings. This historical model works when the ruling is already made by the judge and the proposed order is written to reflect the judge's ruling.
The long-standing judicial system of lawyers writing proposed orders and sending them to the judge to sign, has always worked efficiently only if the judge made an earlier ruling that the proposed order is supposed to reflect. The judge is then in a good position to review the proposed order and compare it to her earlier ruling.
A system in which parties and their lawyers propose orders tends to break down whenever the proposed orders do not reflect the judge's ruling but instead reflect what the parties and their lawyers want.
In the case of secrecy stipulations with proposed orders, judges are presented with a proposed order which turns their stipulation into a judge's ruling, as if by magic. These are proposed orders mandating secrecy, concealing evidence and settlements without any mention of good cause for the concealment.
Judges then often take a proposed secrecy order and sign it as it was written, just as in the case of People of California v. Wells Fargo. Sometimes, as happened with the February Proposed Order in this case, a judge merely crosses out the word, "proposed," before signing the secrecy order.[1]
That relatively new use of an old system of proposed orders written by lawyers and supposedly reviewed by judges now serves the purposes of secrecy in court and agency proceedings alike. The public will generally not know what was actually done, or by whom. The public will know only that some uncertain number of people were hurt. It is unlikely that there will be an uproar or any public demands for change. And the evidence will be kept as secret as possible or perhaps not even offered. If no lawsuit is filed and no enforcement action is taken at all, then secret harmful conduct will be kept secret and will not stop.
And people who might be able to avoid harm if they knew the full story, cannot take action to protect themselves because they do not know the harm that may await them.
[1] Stipulation and Protective Order entered and filed on February 2, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court). See generally Dennis J. Wall, Lender Force-Placed Insurance Practices § 3.1, "Secrecy First, and Then Settle" (American Bar Association Publishing 2015).
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