The Toolbox: Ten Questions and Answers

This month I thought I would tell of some questions I have been asked at various CLE events. The answers to the questions are my answers. Many a judge may disagree with me. For example, there may well be judges who enjoy nothing more than a juicy discovery dispute. Anyway … :

1. How do you feel about discovery disputes

I dislike them intensely. First, discovery should be a cooperative effort among parties coordinated by counsel. In my district we even have an en banc district court case on the issue, Dondi Properties Corporation v. Commerce Savings and Loan Association, 121 F.R.D. 284, N.D. Tex. en banc, that all lawyers admitted (even pro hac vice) must read.

Second, a judge is not well-positioned to understand a discovery dispute. Even assuming the judge has not only read the papers specific to the dispute but also the pleadings in the underlying action, he or she is not going to have a grasp of the parties’ strategies of proof. Thus, it is difficult to determine whether a given type of discovery will eventually produce relevant, admissible evidence.

Third, it is difficult to assess what is or is not burdensome. The parties are better positioned to recognize where discovery ends and harassment begins.

2. What happens in court that annoys you the most?

There are a lot of things that bother me—for example, some leading objections and a failure to agree on admissibility (based on authenticity) of most exhibits. But two things stand out for me—the unprepared lawyer and the lawyer who wants to tell me more about disputes with and failings of opposing counsel than his client’s case.

There are some instances where preparation is limited—some consumer matters and matters coming before the court on abbreviated notice, for example. But generally counsel should know the relevant facts and the law going into a hearing. Certainly if their subject is covered by binding precedent or one of my own opinions, I expect counsel to be familiar with that precedent. Nor should direct examination (or even cross) sound like a substitute for discovery. It is an old saw that a lawyer should not ask a question to which he does not know the answer. That’s a good rule.

As for bad-mouthing opposing counsel, I’d rather hear about your client’s case. Federal Rule of Bankruptcy Procedure 9011 and other provisions of the Bankruptcy Code and Rules provide means for socking it to counsel. If your problem doesn’t fit within one of those provisions, the subject is best left alone.

3. Is there a conflict of interest in representing the debtor in a case and representing a creditor in other cases?

To begin with, Section 327(c) allows a trustee (and therefore a debtor in possession) to retain an attorney who has represented a creditor, even in the same case, unless there is an actual conflict. Since the standard for representing a debtor—as opposed to a debtor in possession—is not set by the Bankruptcy Code, it would seem that there is no prohibition on representing the debtor where the attorney has represented one of the debtor’s creditors in other matters. Of course, the representations must still pass muster under the ethical rules applicable under local law, and the creditor may be less than happy with the arrangement.

Also, it has been held—see In re Amdura Corporation, 121 B.R. 862, Bankr. D. Colo.—that an extensive, central relationship between the creditor and the attorney may disqualify an attorney from representing a Chapter 11 debtor-in-possession. This suggests that counsel representing a debtor in possession should not face a major client as a creditor. While I have seen the use of so-called “conflicts counsel” to solve the problem it is unclear how such a mechanism would be viewed on appeal if opposed.

4. What is your biggest pet peeve in pleadings?

A failure to proof read.

Not only pleadings but also briefs or anything else being filed with the court should be carefully proof read. Nothing detracts more from my confidence in an attorney than sloppy writings. If counsel doesn’t take care with his or her writing, how can I trust that lawyer’s research or command of the facts?

When in doubt, look up the meaning or spelling of a word. Among the most frequent mistakes I see are confusing “principle” and “principal,” “affect” and “effect,” and “imminent” and “immanent.” Also a remarkable number of lawyers think the past tense of the verb “to plead” is spelled p-l-e-a-d (try “pled” or “pleaded”).

Don’t misunderstand me. Mistakes happen. But there should not be several errors in every paragraph—and sometimes the mistakes are truly egregious: confusing cases or parties or courts.

5. If you could give young lawyers one piece of advice, what would it be?

Obviously I would tell them to be prepared and to proof read. Perhaps more importantly, I would encourage them to develop their writing skills. A lawyer is first and foremost a communicator. Anything the lawyer writes or says can come back to haunt him or her. Lawyers should keep that in mind. There is nothing more embarrassing than being quoted accurately and in opposition by opposing counsel. Generally good use of grammar and thoughtful writing will obviate this problem.

Moreover, what is written should be readable and presented in logical sequence. If something is a chore to read it may not be read—or at least not read carefully.

6. How do you feel about being reversed?

Getting reversed is a lot like, in private practice, losing a case you are pretty sure you will win. When I decide a case I’m usually quite confident I’m right, so getting reversed is an unpleasant surprise. I still feel that I was correct in some instances where I was reversed, though in many cases I have become more convinced of the appellate court’s views.

I think part of the reason for reversals is that appellate courts and trial courts approach issues from slightly different viewpoints. The former look at a case from the perspective of fitting in the law while the latter have a greater focus on the specific case. This is not to say that trial judges will ignore the law to arrive at a given decision. That’s not true at all. Similarly, appellate judges wish to do justice in the specific case. But the different outlooks necessarily result in slightly different emphasis and a greater potential for reversal.

7. Do you think bankruptcy courts are constitutional?

This is a hard question. Article III of the Constitution assigns the judicial power of the United States to judges with life tenure. There can be no question that bankruptcy judges exercise the judicial power of the United States in deciding core proceedings. Nor can there be any doubt that they lack life tenure.

Nevertheless, while limiting the competence of bankruptcy judges, the Supreme Court has never questioned their establishment under the Constitution since the old case of Northern Pipeline Construction Company v. Marathon Pipe Line Company, 458 U.S. 50, U.S.. Though the Court applies the same law as it does to adjudicatory arms of administrative departments to bankruptcy courts, there is a basic difference. The former are parts of the executive while the latter are formally under the Judicial Branch. It seems to me this could result in different results when considering the constitutionality of bankruptcy and magistrate judges (also part of the judiciary).

8. What role, if any, does the old Bankruptcy Act have in bankruptcy law today?

To begin with, many concepts are carried over from the Act to the Bankruptcy Code. Indeed, many provisions are almost identical, and case law interpreting the Act is relevant—for example cram down or disinterestedness (both from old Chapter X). Other concepts grew from case law under the Act—for example adequate protection and equitable subordination. Old law is relevant and sometimes dispositive in these areas.

Moreover, where the Bankruptcy Code changed the Act—for example by adding Section 1111(b)—the deficiency in the Act informs the reading of the present law.

Put simply, history is important. The Supreme Court regularly looks to history in deciding cases (see, for example, Central Virginia Community College v. Katz, 546 U.S. 356, U.S.), and placing a provision in its historical context will at least illuminate it and sometimes will give it meaning.

9. How do you feel about lawyers contacting chambers?

As a general rule, lawyers should not contact chambers. There are exceptions, however. Issues involving the mechanics of trial may be answerable by the court reporter or the courtroom deputy, who are generally available to the public. A question concerning the form of a paper to be filed, if not covered by local rules, may need the attention of a law clerk. Questions not involving cases—for example, whether I can speak at a conference—may have to come to me or be first addressed to a law clerk.

I do not like to receive calls from debtors, but consumer debtors often contact my chambers. Counsel should discourage this, though the most frequent topic of such a call is a complaint about the lawyer. I try to funnel such calls from me—but every now and then I get trapped.

10. Why did you become a bankruptcy judge?

For the private bathroom.

Seriously, though government employment carries with it a modicum of security and good benefits, besides the bathroom, I think most judges seek the job to make a contribution and enjoy new challenges. That, at least, is why I did it.

Bankruptcy judges, even constrained by Stern v. Marshall, 131 S. Ct. 2594, U.S., have considerable power to control a case, normally unconstrained by a jury (assuming since Stern we can try a case to a jury) 23 BBLR 817, 6/30/11. Section 105(a) of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 7042 (incorporating Federal Rule of Civil Procedure 42), for example, give me a lot of leeway to control the direction of a chapter proceeding or an adversary proceeding. Together with the phrase “unless the court orders otherwise” found in sections such as Section 349 and broad authority to fashion a remedy, such as in Section 362(d), I can tailor decisions and timing to maximize the chances of a consensual result. In this way a bankruptcy judge can have a real and positive impact on how a matter goes forward.

On the other hand, we never (or rarely) see habeas petitions (and when we do see them they are not directed at a conviction). We never have to announce a death sentence. Disputes are usually economic in nature and not a reason for tears on the witness stand. Our issues are generally governed by objective logic, not a subjective assessment of evidence.

All these things make it a great job I heartily recommend.