A lawyer is more than a mouthpiece, more than an agent, more than a mere compendium of legal truths. A lawyer is more than a mere translator of a client’s desires. A lawyer is representative not just of the client’s interests, but in some ways the embodiment of the client. It is for that reason that a lawyer’s style is more than just stylistic. How a lawyer comes off in court can all too often dramatically affect the perception the judge is likely to develop of both the client and the merits of the client’s position in a case. In short, style matters. Some styles work better than others, of course. Every judge has their favorite style, as well as styles that rub them the wrong way. (Emphasis added).
So what does Judge Clark do when someone’s style REALLY rubs him the wrong way? He calls him the bankruptcy equivalent of Adam Sandler in the movie Billy Madison, and writes this:
Before the court is a motion entitled “Defendant’s Motion to Discharge Response to Plaintiff’s Response to Defendant’s Response Opposing Objection to Discharge.” As background, this adversary was commenced on December 14, 2005 with the filing of the plaintiff’s complaint objecting to the debtor’s discharge. Defendant answered the complaint on January 12, 2006. Plaintiff responded to the Defendant’s answer on January 26, 2006. On February 3, 2006, Defendant filed the above entitled motion. The court.cannot determine the substance, if any, of the Defendant’s legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant’s motion is accordingly denied for being incomprehensible. [FN 1]
[FN 1] Or, in the words of the competition judge to Adam Sandler’s title character in the movie, “Billy Madison“, after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,
Mr. Madison, what you’ve just said is one of the most insanely idiotic things I’ve ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.
I’m sure many judges have often felt that litigants (pro se or not) deserve to be thrashed as Adam Sandler was in Billy Madison. I suspect, however, that judges are more often inclined to invoke that most famous of movie lines, “Frankly, my dear, I don’t give a damn.”
Special thanks to an anonymous donor for the tip to Judge Clark’s ruling.
[NB: Judge Clark was one of the first to rip BAPCPA’s anti-consumer protection provisions when he penned an article in 2003 entitled Things Change, 22-MAY Am. Bankr. Inst. J. 40 (2003). He said:
Some of you know that I am a new (and very proud) father for the first time in my life (better late than never!). What a massive change in my life this has been (of course, that’s old news to most of you who had children at a more age-appropriate time in your lives). But it’s been the most wonderful life-changing event that I have ever experienced.
Not all life-changing events are so welcomed, of course. Many changes are mere brutal reminders of how unprepared we often are to have our routines altered without much warning. Some years ago, when I was being confronted with one of those routine-altering life events, a friend of mine pithily commented with a shrug of his shoulders, “things change.” Sometimes, that’s all you can say–and all that really needs to be said.
Maybe Congress will pass this bankruptcy bill. If so, things will change. Unlike the birth of my son, I doubt that I will welcome this change. A bill that proposes to make lawyers the guarantors of their clients’ veracity is not a bill that any lawyer (or judge) will welcome. No other area of practice that I can think of (not even criminal law) imposes such an extraordinarily unrealistic burden on a lawyer. The real effect is to drive lawyers out of the consumer bankruptcy business, leaving the field to the unregulated (and often incompetent or dishonest) petition preparers. As a judge who takes seriously the obligation to police the integrity of the system, I do not welcome the prospect of presiding over a docket plagued with petition preparers and a mass exodus of competent lawyers.
Oh well, things change.
Creditors who now welcome the proposed changes in bankruptcy law may soon come to regret those changes. Or perhaps not. Some say that the dramatic increase in the ratio of chapter 7 filings to chapter 13 filings will be a good thing. (By the way, that’s not a typo. If the proposed bankruptcy legislation is enacted, most bankruptcy judges, chapter 13 trustees and practitioners already realize that, because of the onerous obligations then imposed on debtors under chapter 13, the only real option for most consumers will be chapter 7 liquidation–and the so-called “means test” is only window dressing that will not prevent the vast majority of consumers from choosing chapter 7.)
Credit card companies will not benefit from that change, but they never intended to anyway. They securitize their portfolios, then service them for the investors who bought the packages of debt. What do they really care if the debtors don’t ultimately pay? They already have their money as a result of the sale of their portfolios.
Then again, things may further change. The securitization market may become saturated as more investors become increasingly chary about buying these portfolios. Credit card companies may find themselves having to face larger repurchase obligations, forcing them to look, after all, to the underlying borrowers for payment–most of whom, when they file, will file chapter 7, discharging the debt.
Car finance companies will certainly welcome a new bankruptcy bill. They, unlike their credit card colleagues, will actually prefer debtors to file chapter 7. No revaluations, no extending the length of the note repayment, just a nice clean mandatory reaffirmation and their debtors still on the hook for the car payments without the protection of an automatic stay. Life is good.
Little wonder that the major car lenders are some of the biggest backers of the proposed bankruptcy legislation. They have poured millions into the lobbying effort, expecting to reap billions as a result of the changes. Perhaps they will be rewarded. But when a debtor loses her job and can’t make her payments, all the mandatory reaffirmation in the world won’t make a difference; if she doesn’t have the money, she doesn’t have the money. Come pick up the car, Mr. Lender.
When Congress first took up bankruptcy reform in 1997, the economy was booming, the stock market was on a tear, the federal government was enjoying a budget surplus for the first time in decades, and jobs were being created at the fastest clip since after World War II.
Congress is still considering essentially the same bankruptcy reform, only now the economy is faltering, the stock market is down 3,000 points, the federal government is once again running up budget deficits, and the job market is once again filled with layoffs. Congressional debate on the topic of bankruptcy reform sounds as though the members of Congress think that nothing has changed since 1997. Of course, we know how silly that is. After all, things do change.
Oh well. At least business is booming for business bankruptcy lawyers.]
© Steve Jakubowski 2006