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Practice Tip: Deciding Whether to Involve the Court in Confidential Matters
In a litigated dispute, the court is the referee between the parties, and the lawyers will routinely submit matters for its official approval. Agreements between the parties ' such as agreements regarding document confidentiality or settlement ' are much more easily enforced if entered as court orders rather than left as private contracts. Consequently, it is standard practice to reduce such agreements to orders.
There are times, however, when it is not in the interests of the parties (or at least not in the interests of one party) to involve the court in an agreement between the parties. You should always consider the competing interests at stake. If you involve the court, you will have an easily enforced order to which the court is already committed, at least to the extent of having placed its official authority behind it. Involving the court also provides a measure of protection against that court ' or another one ' subsequently finding something objectionable about your agreement and voiding it. Finally, it is possible that your judge may be displeased by being excluded from some aspect of the case that he or she is used to endorsing.
On the other hand, there are disadvantages to submitting your private agreements to the scrutiny of a public official. Like other official proceedings, lawsuits are at least partly a matter of public interest, and judges often find themselves under pressure to make things public that the parties may prefer to remain private. Revelation of details of a settlement or publication of documents produced in discovery are examples of the potential negative side of reducing agreements to court orders.
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