In this column, I’d like to return to that original theme. I’d like to spend a little time talking about "pet peeves." At the outset, I do want to offer a disclaimer or two. First off, I really don’t have that many pet peeves. Most of the lawyers who show up in my court do a very good job, and the court process proves in general to go smoothly (perhaps even pleasantly). Secondly, I recognize that my pet peeves are just that—mine. My colleagues from around the country no doubt have their own private list (and I invite them to share their lists with the world in this column). I do not have any intentions of even trying to speak for them. Having disclaimed now, I can proceed to some of my own pet peeves.
Lack of Candor
Call it what you will—blowing smoke, backing and filling—whatever. A lack of candor always comes off as a bit of an insult to the intelligence of the court. Whether it comes in the form of ignoring unfavorable precedents or trying to cover up a mistake made by the lawyer, or a witness’ stretching of the truth, or an expert’s refusal to own up to the assumptions which underlay her opinion, from the judge’s point of view (at least this judge, anyway), such lack of candor feels like an effort to deceive the court into making the wrong decision. The decisions judges are asked to make are our work product. We are as eager to turn out good work product as anyone else who takes pride in his work (and most judges do indeed take pride in their work). Efforts to undermine that task carry with them the scent of deceit and will tend to infuriate me—and from my conversations with my colleagues, I am apparently not alone on this.
I suppose the impetus to be less than candid flows from a combi-nation of fearing the consequences of candor and believing that the judge won’t realize he’s being snookered. What has surprised me in my tenure on the bench is how patently transparent such efforts really are—which means that the consequences of avoiding candor will usually be far worse than the consequences of being candid.
Lack of Logic
Anyone who has read my published decisions over the years already knows about this one. It is one most likely to be committed by those with the least excuse for doing so—lawyers. We are trained to think things through in a logical fashion, on the (perhaps misguided) presumption that the law is rational. Committing errors of logic, then, has a result not unlike lack of candor: It infects the work product of the judge. The problem with so many logical errors is that they are often committed intentionally, in the hopes of appealing to some baser prejudice. In the bankruptcy arena especially, this can lead to pernicious results. Most of our colleagues on the district bench, who have the unwelcome task of first level appellate review, are not bankruptcy specialists. Appeals to their prejudices can sometimes be effective, especially if they happen to harbor a particular prejudice against bankruptcy matters.
Litigators are retained to exploit advantages on behalf of their clients, and will certainly be tempted to exploit this one if it presents itself. In the process, however, they may cause far more damage to the system than the rewards of a single case will justify. Feeding the biases of a district judge may tend to reinforce that judge’s negative opinion of the bankruptcy system in general—an opinion that may tend to undermine the bankruptcy bench in the process. It is fortunate that such tactics do not work in most jurisdictions because the district judges in most jurisdictions (including, thankfully, mine) do not harbor such prejudices, and are not so easily misled. Where such tactics do work, they are especially offensive. Personally, I do not want to see practitioners in my court even starting down that road.
Lack of Judgment
This can take a number of forms. Most recently, a friend of mine encapsulated an example of it with regard to how lawyers make their presentations to the court, observing that there is a marked difference between arguing to the court and arguing with the court. I’ve certainly seen plenty of examples from presentations made in my court, and I can recall committing this particular sin myself in the practice. Because I’ve been there and done that, I know exactly what is happening when it occurs. A lawyer who begins to argue with the court is a lawyer who has, for whatever reason, begun to take things personally. Perhaps the court is grilling the lawyer on a particular point of law. Or perhaps the judge is expressing some doubts about the credibility of the lawyer’s client. Maybe the equities of the case are such that the court finds the lawyer’s position peculiarly offensive.
When a lawyer encounters such a situation, and feels the heat rising, that’s the time to stop, take stock of what is going on, count to 13 (or 20, or 30, depending on the situation), and pay close attention to what is really going on. In most cases, the judge is not personally attacking the lawyer standing before him (I say "most" because, occasionally, the lawyer’s paranoia is justified). Usually, the judge is testing a position the judge thinks might be weak, or is expressing the frustration of having the law push in one direction and equity push in the opposite direction. If the lawyer will put aside the natural tendency to become defensive, and instead pay attention to the signals being communicated, then clear thinking will prevail. The lawyer attentive to what the judge is really saying may well be able to respond in a creative way that can turn the situation to the lawyer’s advantage. As long as the lawyer is being defensive, however, that can never happen.
Errors of judgment are hardly limited to arguing with the court, but this is the one that stands out particularly for me.
Lack of Preparation
No judge enjoys dealing with a lawyer who is unprepared. Not only does it tend to slow things down, but it also forces the judge into making an unpalatable choice between protecting the client against the lawyer’s lack of preparation (in the process, aiding the unprepared lawyer to the prejudice of the lawyer who came prepared) and leaving the lawyer to the consequences of lack of preparedness, often resulting in the client’s losing—even though the facts and the law would indicate that the client probably should have won. Judges would just as soon rule on the merits, instead of turning the proceeding into a contest between lawyers.
There are other pet peeves, of course. And practitioners no doubt have a set of "pet peeves" about me (I know a few of them!). But these are the "biggies" on my list. They are useful to publish here because, near as I can tell from my conversations with other bankruptcy judges on the bench, I am not the only one who claims these particular peeves as pets. Hopefully, the exercise has proved useful for you, the readers of this column.