An order to show cause (OSC) is something of a
procedural loner. In some areas of practice, you regularly use them, but
most lawyers see one only occasionally. Even then, the Rules don’t tell
you much about how OSCs are supposed to work and what process
you’re supposed to follow, so lawyers sometimes struggle with them.
This month’s column discusses the basics. It applies equally to “orders
to appear,” which is what they call OSCs in
First, what exactly is an OSC, and why do
we have them?
In simplest terms, an OSC lets the court
get jurisdiction over someone and order them
to a hearing at the same time. In a typical lawsuit, a complaint is served, then nothing happens until the defendant files an answer in due
course. But what if you need a hearing sooner?
What if you seek temporary orders, special
action relief, or some other accelerated relief?
OSC is the tool. The court issues an OSC, to
be served with the summons and complaint,
ordering the defendant to appear for a hearing
so things can be decided before the time for
This is the most common use for an OSC,
but not the only one. It is also used to bring
someone into court who is not already a party.
We see this, for example, when a party seeks to
hold a non-party in contempt for failing to comply with a subpoena.
In family court, an order to appear is needed to re-start a case, for
example, to modify child support or spousal maintenance. (Changing
legal decision-making or the primary residential parent follows a different procedure.) So long as the case is active, parties must provide a current address for serving papers by mail.
But people drift away once the case is over and a final judgment or decree is entered. If the case needs to be re-started
months or years later, it’s not enough to simply send someone an application to their most recent address on file. You
have to personally serve them afresh to ensure notice. That’s
what an order to appear does.
So how do you get an OSC if you need one?
You file an application, preferably separate from the
underlying complaint or other pleading. And you lodge a
form of OSC with the judge. You can lodge the order electronically (where efiling is available), but you’ll get better
results walking it to the judge’s chambers. Leave blanks for
the time and place of the hearing. Include a blank space for
the judge to write in a deadline for serving the OSC.
8 ARIZONA ATTORNEY JULY/AUGUST 2015 www.azbar.org/AZAttorney
CIVIL PRACTICE POINTERS by Hon. Randall H. Warner
Hon. Randall H. Warner
is an Arizona Superior Court Judge
in Maricopa County.
Some judges have their own preferred
OSC or Order to Appear forms, so check
with staff before lodging your form. In
family court, orders to appear must be substantially similar to the form appended to
at the show-cause
one of two things.
Sometimes, it’s a
hearing on the
merits, so all sides
better be prepared
to put on their evidence. More often,
it’s a “return hearing,” which is basically a scheduling
prepared to discuss
what kind of hearing is needed on
the merits (i.e.,
evidentiary or just
the hearing should
be, how long it should be, and what if any
discovery must be done first.
Because there’s a big difference between
a return hearing and one on the merits,
specify which you want in your application
and lodged OSC. Or give the judge a
choice between the two. The OSC should
say something like either “the parties
should be prepared to put on their evi-
dence” or “this is a return hearing only, no
evidence will be taken.”
Regardless of which kind of hearing it
is, make a point of talking with opposing
counsel before the hearing. If it’s a return
hearing, see if you can agree on a schedule
and procedure for getting the substantive
issue heard. But even if it’s a hearing on the
merits, it may be a short one, so stipulating
about the small stuff will help both sides
make efficient use of their time. AZ AT
Welcome to a new column that provides tips
from judges on civil practice. If there are
practice tips you’d like covered—or if
you are a judge who would like to write a
column—write to email@example.com.
If you seek temporary
orders, special action
relief, or some other
OSC is the tool.