Law on Rice

I saw this announcement on the Arizona bankruptcy court’s website:

PACER Service Center EPA Fee Schedule Update: On March 16, 2010, the Judicial Conference of the United States approved an adjustment to the Electronic Public Access Fee Schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Previously, users were not billed until their accounts total at least $10 in a one-year period.

That’s a classically legal way of saying, “hey, if you don’t use PACER very much, don’t worry about it.”

I was watching Ira Glass last night on Current.tv. He was giving would-be storytellers some tips on making good video. He had some of the best advice I think I’ve never heard before.

He said something like, “look, you want to make stories because you love good stories. And because you love good stories, you see and read a lot of them. And so, you’ve got good taste.” “But then you make your own story, and it’s not that good. And you think about giving up.” “There’s this gap–a gap between what you’re actually able to produce and what you know is good–that you can only get over if you just keep at it and don’t give up.”

I think I have that problem. Sometimes I don’t post very much because I read a bunch of great stuff, and I get frustrated with my own stuff. I read a lot. And I’m really picky.

Lately I’ve been reading a lot of Gerry Spence, and he just makes me feel so inferior–even though he’s trying to cause exactly the opposite effect.

I think Ira’s right though, the only way to really get over it is to keep on plugging away.

Before going to law school,  I was in enterprise consulting for around ten years.  Having been in a technical world for so long, I was initially kind of surprised to find out that many people consider law a technical field too.

Then, I started interviewing with firms and meeting a lot of lawyers, and I found out that they were not a whole lot different than the technical corporate guys I used to hang out with.  The people were right.

So, for among many other reasons, I quickly ditched any notions of working in intellectual property.   For a minute there, I thought I would like tax law because, but that seemed just as geeky.  I wanted to be a “real” lawyer, not a geek.

Then I discovered bankruptcy and debtor-creditor work, which I absolutely love.  It’s a little technical, but it still feels like I get to be a lawyer.  That is, I get to do more than advise clients, I might actually get to go to court!

But lately I’ve been thinking it really would be a good idea to continue on an get something like an LLM in tax, or maybe take the CPA exam.  It seems like it would help me a great deal when I do advise clients. I feel like I can easily handle the technical aspects.

But how do I reconcile that sense of being a courtroom trial lawyer with the very technical and arcane tax code?  How does a tax lawyer become a charismatic and a powerful advocate?  How does one take the complex and arcane and make it compelling?

I was reading Ninth Circuit BAP case Dunn v. Chase Home Finance, LLC (In re Dunn), no. 09-1176 (9th Cir. B.A.P. Feb. 4, 2010) when I came across footnote two.  It says:

Dunn has provided us with little in the way of excerpts of record to work with.  For instance, she did not provide us with copies of her bankruptcy schedules and statements, nor do we have the transcripes . . . nonetheless [we] have independently reviewed [the electronic docket] . . . we have done our best to reconstruct what what transpired . . . [the appellant] bears the consequences of failing to meet [her] burden.

I’m pretty sure it was an oversight on the lawyer’s part, and I’m pretty sure the omissions alone would not prejudice the case too much, but this is the stuff that makes a geeky law student’s mouse finger twitch.

There are so many little twists and turns in procedure, so many chances to make a mistake.   I hope I never get my own footnote two from a panel of appellate judges. Or any judge.  Or equity partner, senior partner, junior partner, senior associate, associate, paralegal, or even copier repair guy.  I hate making mistakes.

Somewhat interestingly (again, to a geeky law student), the Bankruptcy Appellate Panel Judges, Markell, Montali, and Pappas, cited to Ehrenberg v. Cal. State Fullerton (In re Beachport Enter.), 396 F.3d 1083 (9th Cir. 2005) for the seeming proposition that they could reconstruct the transcripts.  I wonder what that case says…

One of the most important things a bankruptcy court offers is the so-called automatic stay.  One of my bankruptcy professors called it the most powerful tool any lawyer has in any field of law.

It stops almost everything, stops it immediately.  That collection company has to stop garnishing your wages. The county judge has to stop that lawsuit. The foreclosure sale on your house stops.  Visa cannot so much as dial the phone to call you.  Yet, if you owe a bank (or other creditor) for a payment on a car or house, the bank is likely going to be able to convince the bankruptcy court to lift the stay if they can convince the judge that they are not “adequately protected.”  Why?

At first, I thought “adequate protection” was Congress’s way of trying to throw creditors a bone.  That is, Congress gave a bankruptcy filers a lot of power, but Congress also wanted a way to protect a secured creditor’s collateral.

But when I looked at the legislative commentary, Congress didn’t mention that particular concern in 1978. Instead, it seems like Congress was more concerned about Fifth Amendment Takings issues.

I just got a motion approved by a bankruptcy judge. The order reduced the client’s interest rate from well over 20% to less than 5%. Not bad!

This has come up a bunch of times for me: client calls panicking because he is getting threatening calls from collectors. Client wants to file for bankruptcy to stop them.

But it’s too soon and the client is judgment proof. The best thing for client to do is to ignore the collectors.

But that’s really, really tough advice to give. First of all, it sounds shocking to people who normally pay their bills. Second, when I give that advice (under Rule 9 supervision, of course), I feel like I sound flippant, undermining what little credibility I have. Third, I leave the client feeling scared, alone, and powerless. That is, I leave him as I find him.

To him, bankruptcy was his only way out. He felt like he had an option, and I just said, “no.”

So what do I do? I asked my clinic instructor tonight and she had an instant answer: try to find a way to leave the client empowered. I like that.

But it’s hard. We’re taught to solve problems for people, not to show them how to solve their own problems. Or are we?

This is just a quick post to tell you that you absolutely must listen to the oral arguments in Espinosa at the Ninth Circuit. I’ve been listening to the arguments in the car of the past few weeks, and I can’t get enough. I listen to it over and over again.

It’s a great lesson for a law student (like me) to hear just how visceral arguments about the law can be. Sometimes that’s hard to pick up in when you’re reading the cases, but when you hear Judge Kozinski talk through his arguments, you get a much stronger sense of just how alive the law really is.

The link is here.

If you haven’t been able to tell by now, I’m kind of a law geek–not just the study of its substance, but its practice too.

Tonight, we discussed the other students’ feelings about giving advice to clients on budget matters instead of just legal matters. I was pretty surprised to hear that some of them were quite reluctant.

Then we shifted into a discussion about whether the students could represent clients who made decisions that the students found objectionable. The hypothetical was, of course, a client who is trying to keep a Hummer (yet more affirmative proof that I’m in Seattle, not Arizona).

If I’m representing a debtor or a creditor, then I feel like my job is to figure out what the client’s goal is, and then do what I can to help him or her accomplish that goal (not my goal). That means dispensing more than legal advice, right? For some people, that Hummer might be their sole prized possession. Of course, their goals may conflict with my own and I may not want to represent them…

But maybe I should put it a different way: I don’t want to evaluate a client’s choices (debtor or creditor) from my limited point of view. I want a framework (are my consultant’s habits showing yet?). For example, it seems better to know what their goals are, and then try to figure out if their decisions are, or aren’t, consistent with those goals. And then I can help get them back on track with, or without, bankruptcy–on their terms, not mine.

And that seems like a lot more satisfying than (a) trying to find only clients who would make the decisions I would make or (b) trying to stay “nonjudgmental.”

Maybe I’ll want to eat these words someday, but this is how I feel right now.

I wish I could tell you all the interesting stuff I learned today, but I can’t because of attorney client privileges. I just wanted you to know that I’m still here, and I’m still learning. A lot!