Almost every day in my practice area, lawyers are faced with the dilemmas:

  • When should you agree to an order, especially after a contested hearing?
  • What is the difference between “agreed as to form” versus “agreed as to form and substance”?
  • Is there ever a time to not sign off on an order even as to form?
  • Is there ever a time that a lawyer should agree to the substance of an order instead of the client?

I recently read an interesting blog post by the TexAppBlog.com guys on this topic Agreed as to Form and Substance: An Appellate Kiss of Death?

Consider that you have a contested hearing over an issue. You disagree with the judge’s ruling. You may even think this issue could be something appealable. The judge requests that the attorneys agree on the order. Opposing counsel presents an order that has the language “agreed as to form and substance” at the end by your signature blank. What do you do?

There is a split in the courts of appeals as to the effect of the language “agreed as to form and substance”. One view, according to Dallas, Texarkana, El Paso, and San Antonio, is that signing off on such language equates to a consent judgment that cannot be appealed. These courts distinguish between the phrases “agreed as to form” versus “agreed as to form and substance”. Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537, 544 (Tex. App.—Texarkana 2006, pet. denied); Office of Attorney General of Texas v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ); Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

On the other hand the two Houston courts, Corpus Christi, Austin and Fort Worth find that the language “agreed as to form and substance” is not enough to rise to a consent judgment. Standing alone, without other indications, the language is not enough to suggest that the matter was settled by agreement. Andrew Shebay & Co., PLLC v. Bishop, 429 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Chang v. Nguyen, 81 S.W.3d 314, 316, 319 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 WL 349510, at *2 & n.5 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.); Cash v. Cash, No. 03-04-00563-CV, 2005 WL 1787552, at *3 & n.7 (Tex. App.—Austin July 27, 2005, no pet.); Leeper v. Woodrick, No. 2-04-371-CV, 2005 WL 1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.).

Seems to me that there is an important distinction between the langauge “agreed as to form” versus “agreed as to form and substance”. The word form denotes the form of the order — does it meet the requirements of formatting, language, and content per the Judge’s ruling? The word substance indicates that the heart of the matter, the substance, what the hearing was about, is agreed. Using Jimmy Buffett as an example… If he were the judge, he would rule that a cheeseburger should come with lettuce, tomato, Heinz 57, french fried potatoes, kosher pickle and a beer. I disagree and prefer my cheeseburger with mayo, lettuce,

The best practice is to never agree to “form and substance” unless you actually agree to the content and subject matter underlying the order. At most, only agree to form. However, many times when the order results from a contested hearing, the result of which I disagree, I will not even agree to form to avoid any ambiguity in my position. As to substance, it is the client’s agreement to substance that matters, so many times even if agreeing to the matters underlying the order — the substance — the client should be the one signing off on that, not the lawyer.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.