Protocol in Dealing with Journal Entries

What is a journal entry?

The term journal entry derives from NRS 25-1318, which states that "All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action."  In the early history of Nebraska courts, the journal was a bound volume in which the clerk copied by hand the judgments and orders.  At the present time, it is a looseleaf book on which judgments and orders are photocopied onto loose pages placed on posts in the book.  In the near future, it will probably be a purely electronic repository.

We customarily use the term "journal entry" or "journal" to encompass the formal written document prepared to accomplish the rendition (and subsequently, the entry) of an order or judgment on the court journal.  Thus, when we refer generically to "journal entries," we include both judgments and orders.  It is not something different from a judgment or order, but a generic term used to refer to either type of document.

What is the difference between a judgment and an order?

The journal contains both judgments and orders.

"A judgment is the final determination of the rights of the parties in an action."  NRS 25-1301(1).  The term "judgment" is normally used in a law action while the term "decree" is normally used in an equity action.  Both are forms of judgments.

"Every direction of a court or judge, made or entered in writing and not included in a judgment, is an order."  NRS 25-914.

Obviously, something cannot be both a judgment and an order.  The definitions are mutally exclusive.  Therefore, it is a misnomer to entitle a document "Order for Judgment," "Order of Default Judgment," "Order of Decree," etc.  The proper title depends upon the character of the instrument, determined by which definition is met by the relief granted.

Pronouncement, Rendition, Entry

There may be as many as four steps to the completion of a judgment or order.

Obviously, the hearing or trial is the first step to a decision in a case which may result in an order or judgment.

Pronouncement is the judge's act of orally announcing a decision from the bench on the record in open court.  If the judge announces the decision at the completion of the hearing or trial, the judge is making pronouncement.  Obviously, if the judge does not pronounce decision at the conclusion of the hearing or trial, it is unlikely that the decision will be later pronounced.  Occasionally, however, the judge may hold a hearing or trial, and at its conclusion, announce a later date for appearances of the parties or counsel to hear pronouncement of decision.  Frequently, the judge may pronounce the decision, but expect the completion of the written judgment or order (either by the judge or by one of the lawyers) at a later date.  Other times, the judge may not pronounce any decision at the conclusion of the hearing or trial, and the communication of the decision will occur only in writing.  In the latter instances, pronouncement never occurs.

Pronouncement used to be part of the formal process of rendering a decision.  While a decision may or may not be pronounced in open court, the pronouncement does not start appeal time running.

Rendition is "the act of the court, or a judge thereof, in making and signing a written notation of the relief granted or denied in an action."  NRS 25-1301(2).  Formerly, time for appeal commenced with "rendition," as it was previously defined; however, time for appeal no longer commences with rendition.  Only the judge can "rend[er]" a judgment or order; the clerk has no role in "rendition."  Because the rendition occurs upon a written notation, it requires a writing, i.e., a document to be signed by the judge.  The judge may request one of the parties or counsel to prepare the proposed journal, i.e., the proposed judgment or order.  Or the judge may accomplish that act herself/himself.  But either way, it is the judge's act of signing the document that completes "rendition."

Entry "occurs when the clerk of the court places the file stamp and date upon the judgment, decree, or final order."  NRS 25-1301(3).  Time for appeals now uniformly runs from the date of "entry."  The appellate court will use the clerk's file stamp and date to determine the expiration of time for an appeal.  Although for purposes of appeal the entry of the judgment or order is accomplished by placing the file stamp and date upon the document, the statutes also require the clerk to "enter" the document on the journal.  Thus, entering a judgment is a two-step process.  The first step (file-stamping and dating) determines the time for running of an appeal, while the second step (entered on journal) preserves the formal record of the court's judgments and orders.

Separate Document

A proposed judgment or order should not be attached on the same page as a motion for the requested relief.  This requirement is formally stated in Uniform Dist. Ct Rule 3C, which states that "All proposed orders shall be by separate document and not a part of any other pleadings."  Previously, you would often see a motion for continuance or motion for default judgment at the top of a page and the proposed order or judgment at the bottom of the same page.  That practice presents practical difficulties in filing and docketing procedures, particularly in non-metropolitan counties where such motions were often received and filed by the clerk on a different day than acted upon by the judge.  Submitting proposed orders or judgments on a separate page eliminates those problems.

Submit Proposed Order with Filed Motion or at Hearing

Counsel are encouraged to submit a proposed journal entry, i.e., the proposed order or judgment, at the time of filing or at the time of hearing of the motion.  Enormous efficiencies are achieved where the judge has the order or judgment readily available to be signed at the time the matter comes up for hearing.  It is not viewed as presumptious in any way; but rather as the sign of a capable lawyer.

Submission After Hearing

If not previously furnished by counsel, counsel for a prevailing party may be requested to prepare and submit a proposed journal following a hearing. The preferred approach is to simultaneously mail the proposed journal to the judge with copy to opposing counsel, and to include a stamped envelope (see Rule 8-5) for the judge to mail the journal to the appropriate clerk for entry upon the journal and filing. If counsel desire signed copies to be returned, an additional stamped return envelope must be included (see Rule 8-5).

If you transmit the proposed order or judgment to me electronically, you do not have to provide the stamped envelope.

Remember, because an order or judgment is not rendered until signed by the judge and not entered until filed by the clerk, if you are the lawyer requested to prepare the journal, you will not have effectively obtained the relief granted until the judge has signed the order or judgment, i.e. what we customarily refer to as the journal, you were directed to prepare.

Dating of Judgments or Orders

Frequently, journal entries are used not only to state the relief granted or denied, but also to memorialize the proceedings held in a form that may be easily reviewed without the necessity of having a bill of exceptions or verbatim transcript of the hearing or trial prepared by the official court reporter.  For ease of use, and to avoid future confusion or misunderstanding, it is important to specifiy in the journal entry the various stages of the process.

Every journal entry should state the date that hearing was held and describe the proceedings conducted and any decisions announced.  However, because of statutory changes, the pronouncement of decision and making of a trial docket entry no longer constitutes rendition of a judgment or order.  Rendition only occurs when the judge signs the written notation of the action.  Consequently, all proposed judgments or orders should have a line above the signature for the insertion of the date of rendition, such as "Rendered on [space for date]" or "Signed on [space for date]."  It is not appropriate to place above the judge's signature a phrase such as "entered on [space for date]" or "date and entered on [space for date]," as the judge's signature does not accomplish the entry of a judgment or order.

It has been traditional to start a journal of proceedings with "Now on this __ day of ___ ...."  Unless you are very certain that rendition is going to occur on the same date as the hearing, that format is confusing and should be avoided.  Instead, the body of the journal might be started: "On the ___ day of ___ ...."  Another good way of avoiding the confusion is to start the journal, immediately below the caption, with a series of events and dates such as:

DATE OF HEARING:  [The date following the phrase can normally be completed in advance, by inserting the anticipated date of hearing or trial]
DATE OF RENDITION:  [This is normally followed by blanks, such as: "________, 20 ___."  Unless you are very certain the judge is going to immediately sign the order or judgment at the close of the hearing, it is best to use the blank rather than filling in the same date as the hearing.]
DATE OF ENTRY:  [This is determined by the clerk's file stamping and dating, and is best followed a descriptive phrase such as: "Date of filing by court clerk," or, "See clerk's file stamp date."]
I prefer to use the series of events and dates following the caption.  I like that format because it makes it very simple to later determine the timing of those events by looking at the first page of the document, where the file stamp also usually appears, rather than having to leaf through to the end for the date of rendition.

In addition, attention should be given to the proper terminology in connection with the signing of the document.  You will note that orders or judgments that I prepare will have, immediately prior to the signature block, a line stating "Signed [in chambers] at [city, state] on [date]" followed by a line stating "Deemed entered upon filing by court clerk."  This is done to make judgment or order show with complete clarity when rendition occurred and that entry only occurs upon filing by the clerk.

For the same reasons, as described above, at the beginning of orders or judgments that I prepare, you will find headings for "Date of Hearing," i.e. the date the hearing was held in court or by telephone, "Date of Rendition," i.e. the date that I signed the order or judgment, and "Date of Entry" followed by "Date of filing by court court." Of course, the clerk's file stamp will show the precise date of entry.