ILC Judicial Profiles:
The following is a profile of Kathleen J. (Kathy) Campbell, Executive Officer/Clerk of Court for the United States Bankruptcy Court for the Central District of California (the “bankruptcy court”). Ms. Campbell met members of the Insolvency Law Committee in her Roybal Courthouse office and discussed her personal and professional background, the bankruptcy court’s operations and pending issues and observations.
Ms. Campbell was appointed to her current bankruptcy court position in 2010. The Central District of California is home to the largest bankruptcy court in the country, with divisions located in Los Angeles, Riverside, Santa Ana, San Fernando Valley and Santa Barbara.
Ms. Campbell graduated cum laude from the University of California at Santa Barbara, where she was a Law and Society major. She worked at the police department on campus during college as a Community Services Officer and considered a career in law enforcement. Ms. Campbell’s plans changed when, in her senior year, representatives of the University of Southern California visited campus to recruit for their Judicial Administration Program. The Judicial Administration Program combined classes in the law school with classes in the School of Public Administration. The goal of the program was to produce trained professional managers to administer the courts, and Ms. Campbell commented that the program offered a great combination of classes aligned with her interests. Ms. Campbell was accepted to the program, and she went on receive a graduate degree in judicial administration from the University of Southern California. Ms. Campbell loves college football and remains a devoted Trojan fan. Her youngest son is a Bruins fan, having graduated from UCLA, creating an ongoing football rivalry in the family.
Upon graduation from USC, in 1980 Ms. Campbell went to work for the bankruptcy court as a management analyst. She reflects that “this was a dynamic time because bankruptcy courts were just breaking off from district courts and forming their own clerks’ offices with independent staffs.” When she started with the bankruptcy court, she did not realize that it would end up being her life’s work. The majority of Ms. Campbell’s career has been devoted to serving the bankruptcy community. She has held a variety of positions during her 21 year tenure, including a five-year stint as Chief Deputy to the Clerk of Court. Ms. Campbell left the court several times over the years as family needs dictated. She spent time at home when her two sons were young, and also worked iN management positions at the Ventura County Superior Court and the City of Santa Paula, in order to work closer to home and take care of her family. In 2010, with her sons off to college, she returned to accept the position of Executive Officer/Clerk of Court, leaving her position as Human Resources Manager in the City of Santa Paula. Ms. Campbell states that the various positions she held and roles she fulfilled in the past, as well as some excellent mentors along the way, have all prepared her for her current position.
Ms. Campbell is responsible for 176 court employees who support the work of the District’s 24 authorized bankruptcy judges. The Central District of California contains a population of over 19.4 million persons, amounting to nearly 50% of the State’s population. The district’s bankruptcy court is governed by an Executive Committee currently comprised of a total of seven judges, chaired by Chief Judge Sheri Bluebond. Eight other committees comprised of judges support the work of the court, including the Alternative Dispute, Case Management, Community Outreach, and Rules Committees, among others. Ms. Campbell “serves at the pleasure of the court” and reports directly to Chief Judge Bluebond.
In addition to the Central District committees, Ms. Campbell also serves on the Ninth Circuit’s Courts and Community Committee, which is charged with the federal courts’ outreach to the communities they serve. For example, the committee organizes a yearly civics contest where high school students submit videos and essays about important current issues. The winner of the Central District contest gets to compete against other high school students from other Ninth Circuit districts. Last year the winner from the Central District went on to win the Ninth Circuit contest and accepted the award from United States Supreme Court Justice Anthony Kennedy at the Ninth Circuit Judicial Conference. This year the Central District had more Civics Contest submissions than any other district in the Ninth Circuit, and the winners from the Central District contest attended the Ninth Circuit Judicial Conference in San Francisco.
Ms. Campbell also serves on a circuit ad hoc committee on shared services which is examining ways for courts to contain costs and work together to share limited staff resources. She has also been active on a national staffing formula steering group for the last year-and-a-half, charged with measuring Clerk’s Office work and developing a new formula to determine appropriate bankruptcy clerks’ office staffing levels. She has also served on a number of national committees over the last few years, including the Bankruptcy Clerks Advisory Group, the Human Resources Advisory Council and the Electronic Public Access Working Group. Ms. Campbell was just appointed to the Ninth Circuit Space and Security Committee.
Attorneys appearing at the Roybal Courthouse may not have noticed yet, but construction is in progress on some of the upper floors currently housing the Clerk of Court’s office, as well as operations and administrative staff. The 10th floor has been vacated and is being remodeled, and the 9th floor will be vacated and remodeled next. It is anticipated that by the end of 2017, the bankruptcy court will permanently vacate the 12th and 14th floors, with the district court and pretrial services office taking over the spaces. The bankruptcy court’s courtrooms will remain on the 13th, 15th and 16th floors. The lobby space will be modified to include side-by-side intake departments for the district court, bankruptcy court and pro se functions. It is part of what is known as “the Roybal Realignment.” The Roybal Realignment allows the bankruptcy court to reduce the amount of space it uses, and results in the reduction of ongoing rent expense by the bankruptcy court. The release of space is part of a national effort to reduce the amount of funds the judiciary spends on rent. It also creates the space necessary for magistrate judges and support staff, as well as Pre-Trial Services, to move to the Roybal Courthouse.
Construction is slated to continue in Roybal for another year-and-a–half. District Judges have now moved from both the Roybal and Spring Street Courthouses into the new federal courthouse on 1st Street, and ultimately all magistrate judges will join the bankruptcy judges in the Roybal Courthouse.
One of the exciting changes coming to the Roybal Courthouse is a technology upgrade. Ms. Campbell stated that, “we have the budget, as part of the Roybal Realignment Project, to upgrade seven courtrooms in the Central District with new technology. We are adding the infrastructure and plan to equip courtrooms with new audio, video evidence, and video conferencing systems. Chief Judge Bluebond’s courtroom will be the pilot courtroom to be outfitted with the new technology.”
The number of bankruptcies filed in the Central District has been going down in recent years, but weekly statistics show that the downward trend is beginning to flatten out. As bankruptcy filings eventually begin to increase nationwide, Ms. Campbell noted that historically filings in the Central District tend to exceed the national average during both upturns and downturns. She reflects that she “has no reason to think this would not be the case in the future” and that she and her staff are “accustomed to managing the volatility of case filings in the Central District.”
There are currently twenty-four authorized bankruptcy judgeships in the Central District: 21 permanent and 3 temporary. The three temporary judgeships were authorized due to high filing levels after the passage of BAPCPA, with a lapse date of May 25, 2017. According to the statutory language that created these judgeships, the next three judicial vacancies of any kind arising in the Central District after the lapse date of May 25, 2017, cannot be filled in order to reduce the total number of judges to 21, the number of permanent authorized judgeships.
Ms. Campbell explains that the Circuit relies on a formula for annual weighted case hours to determine when a permanent bankruptcy judge position can be filled. “We need 1,000 weighted hours per judgeship (minus one) to fill a position. "Currently the weighted average in our District is slightly under 700 hours. We’ll need about 25,000 more annual bankruptcy filings to bring the average number of weighted judicial hours back to 1,000.” The “weighted hours” are calculated based on a formula utilized nationwide. Judges Thomas Donovan and Richard Neiter retired from their positions prior to the lapse date of May 25, 2017, which allows the court to fill their judgeships, once filings pick back up.
The bankruptcy court has sufficient funds to maintain staffing levels for the current year. After that, things are uncertain. Funding levels for the Judiciary depend on the U.S. Congress, and can sometimes be unpredictable. The Central District is therefore conservative in its spending decisions. To protect the staff from layoffs in the event bankruptcy filings remain low, the court offers early retirements and buyouts to staff members, and participates in national projects and shared services initiatives to bring in supplemental funding. Ms. Campbell is transparent with staff about budget concerns and likely future staffing levels and admires the resilience of the staff to continue to provide outstanding service despite such uncertainty.
Technology has been key to maintaining the court’s services in the face of budget cuts. “If we have too much work in one division, our automated systems allow us to move work to another division to assist.” We have automated a number of our work processes, including discharges and case closings, as well as docketing events. The use of technology is critical to our fulfillment of the court’s mission. We always strive to work smarter and manage with the limited resources we have.”
The role of new technology will continue to expand. In what will be a helpful development for attorneys in the Central District, Ms. Campbell said that, “we plan to add audio recordings of hearings on case dockets. The centralized servers now have enough space so that judges can designate audio from hearings that would be of interest to lawyers.” The inclusion of audio on the CMF/ECF dockets should happen sometime in the coming year.
Also, the Court plans to convert to the NextGen CM/ECF. The system is currently being tested in pilot courts throughout the country and once the bankruptcy court is assured system performance is stable, the Central District will move forward. When asked about the functions of the NextGen system, Ms. Campbell comments that it “will allow a centralized sign-on where attorneys can access CM/ECF for all federal courts with one login and password, and there will be new ways for judges to manage cases and calendaring.”
The Central District currently offers the Electronic Self Representation (eSR) program for pro se debtors to prepare bankruptcy petitions. eSR was developed in a collaborative effort by the Central District of California, the Districts of New Jersey and New Mexico, and the Administrative Office of the U.S. Courts. Court staff are also working with systems staff at the national level to develop a NextGen compatible version of eSR. Ms. Campbell commented that the court first and foremost encourages debtors to obtain the services of a qualified attorney. For those unable to afford an attorney, the court refers pro se debtors to the pro bono self-help desks in each division. Volunteer attorneys are familiar with the software and can review the eSR petition with the pro se debtor. “eSR is a good alternative to reliance on bankrupt cypetition preparers and can help to reduce fraud issues that arise from inadequate assistance provided by unscrupulous preparers.” Ms. Campbell notedthat Judge Maureen Tighe has been a champion of the eSR program, devoting countless hours to assist in its development, along with the hard work of Courtstaff.
When asked about what tips she has for attorneys, Ms. Campbell notes that “attorneys should avoid common e-filing mistakes— verify that uploaded pdf’s are correct, redact personal identifiers, select the correct event code and, if it isn’t correct, notify the court as soon as possible. And don’t alter mandatory language in official forms. If you amend something, state what is being amended. The court has an online chat and call center and attorneys or their staffs should reach out and chat or call with questions. We’re here to help.”
If attorneys have suggestions regarding the local rules, a bankruptcy form or the Court Manual, they should use the “Proposing Revisions” form on the court’s website located under the Rules and Procedures tab. These suggestions are forwarded to the bankruptcy court’s Rules or Case Management Committees for consideration. In addition, Ms. Campbell mentions that, “we’re always looking for attorneys to help with community outreach and civic events and welcome their energy and expertise.” Attorneys interested in getting involved with the bankruptcy court and with community outreach should contact the Office of the Clerk of Court. She adds that, “the pro bono self-help desks in all five divisions are also always looking for volunteers.” A link to contacts at each location is found on the bankruptcy court’s Homepage under Pro Bono Opportunities.
The judges and staff mean a lot to Ms. Campbell. She comments that, “the most rewarding part of the job is that it’s always evolving—there’s a new case or a combination of things that you don’t anticipate. I always look forward to coming to work. I really enjoy working with the judges. They’re smart, intellectually challenging and pose good questions. You have to be on your ‘A game.’ The judges are also fun, each with his or her unique personality traits.”
When asked about the working environment at the bankruptcy court, Ms. Campbell states, “I want people who work here to look forward to coming to work. That means creating a culture where people are treated with dignity and respect. We take pride in our work and do what we say we’re going to do. I hold myself accountable to the highest ethical standards and expect the same of the staff. I have a wonderful staff and we do our best to recognize and reward them for doing a great job.”
Ms. Campbell is proud of the services the bankruptcy court provides. “What we do helps people get their lives back on track.”
This article was written by Corey R. Weber (email@example.com), a partner at Brutzkus Gubner Rozansky Seror Weber LLP, a member of the California State Bar’s Business Law Section Executive Committee and immediate past Co-Chair of the Insolvency Law Committee (ILC), and Uzzi O. Raanan, a partner at Danning Gill Diamond & Kollitz LLP, Vice Chair of the California State Bar’s Business Law Section and past Co-Chair of the ILC (URaanan@dgdk.com).
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Insolvency Law Committee
Asa S. Hami
SulmeyerKupetz, A Professional Corporation
Macdonald Fernandez LLP
Radmila A. Fulton
Law Offices Radmila A. Fulton
John N. Tedford, IV
Danning, Gill, Diamond & Kollitz, LLP
The following is a profile of the Honorable Ronald H. Sargis – the ninth in a series of profiles of Ninth Circuit bankruptcy judges. Judge Sargis and a member of the Insolvency Law Committee met in his chambers and discussed his personal and professional background, observations from the bench, and issues of interest.
Ronald H. Sargis is the Chief Judge of the United States Bankruptcy Court for the Eastern District of California. He was appointed to the bench on January 14, 2010, and sits at the Court’s Sacramento and Modesto Divisions. Judge Sargis graciously agreed to be interviewed for this profile, for which the ILC is extremely grateful.
Judge Sargis was born in Merced, California. His paternal grandfather immigrated to the United States from the Middle East after World War I, and settled in the Central Valley after World War II. The judge’s mother was born in Pueblo, Colorado and moved to California when she was about three years old. Judge Sargis’ father fled the Middle East on a horse-drawn wagon around 1918. Like so many families arriving in this country in the early 20th Century, the family entered the United States through Ellis Island. His family’s early experiences in the United States sensitized him to the fact that not everyone with whom he comes across sees the world the way he does, or follows a single set of social conventions, a lesson the Judge keeps in mind when sitting on the bench.
Judge Sargis is an only child. His father passed away when he was in sixth grade, and his mother reared him in Sacramento, where they had a large extended family. He received his Bachelor of Arts degree in Political Science from Stanford, where he also studied economics, and a Juris Doctorate degree from the University of the Pacific, McGeorge Law School.
After law school, he clerked for United States Bankruptcy Judge Loren Dahl, in the Eastern District of California, whom he calls “a great mentor.” Judge Dahl spent time each Friday talking to his clerks about the law, what they could expect in the future working at a law firm, how to negotiate with clients, and deal with partners. Judge Sargis learned a lot, and tries to pay it forward by passing valuable information to his own law clerks.
After his clerkship, the Judge worked at Hefner, Stark & Marois for 27 years. Most of his work involved representing creditors. He also represented trustees and debtors-in-possession, and handled occasional chapter 7 cases referred by family or friends, or if a case with really interesting issues came along. On occasion, he handled a chapter 13 case, if it involved fraud, tax, or other fascinating issues.
Judge Sargis got involved with the California Association of Collectors, where he served as the general counsel and worked on organizational issues. He helped re-write the Association’s bylaws, and dealt with compliance, fair debt collection practices, fair credit reporting, and state and federal regulatory issues. He also drafted legislation, both at the state level and, to a lesser extent, on the federal level. Most of those involved working with the Federal Trade Commission (FTC) and State regulators. “We worked on collection laws, identity theft laws, child support collection, and a lot of court access issues. On commercial matters, I got involved with trust issues under the Perishable Agricultural Commodities Act, both from the creditor’s side and for a client whom we had to wind down. I got to deal with the trust side and all of the PACA claimants. I got to also be the oil and gas expert in our firm because I took a class on it. So I worked out some oil and gas leases along the way.”
Asked whether any cases stand out from his time as a law clerk or private practice, either because they were intellectually challenging or for any other reason, Judge Sargis is proud to have been involved with a chapter 11 case called Home Tech Medical Services, Inc. He represented a creditor who was owed around $12-13 million, the largest secured claim. The case involved many attorneys representing numerous stakeholders, and was a real testament to people figuring out how to work together to make a reorganization work.
The secured creditors decided to resolve their disputes and work together. To help motivate the other creditors, the Judge’s client agreed to take 60% instead of 70% of its secured claim funds, allowing the remaining 10% to go to other creditors, to give them an incentive to cooperate.
The Judge realized that by getting all the creditors to cooperate, they’d be able to keep the debtor in business, which would result in higher distributions to everyone. At the end, the business was sold and his client recovered about $9 million, rather than the $2.5 million it would have received had the debtor’s assets been sold immediately and his client recovered strictly based on its lien.
Judge Sargis notes that the Home Tech case involved many good attorneys who understood the economics of cooperation. “We’re not taught that in law school. In law school you read a case and there is a winner and a loser -- and that’s it. You’re taught to think ‘we go to battle and we win or lose.’ Bankruptcy doesn’t work that way. Commercial law really doesn’t work that way. If you pay attention to the economics of a case, usually you can find a way to work things out and provide greater benefits to creditors.”
When he joined the bench, the Judge made it clear to the consumer bar that, based on his experience as an attorney, he understood that the consumer practice is different. Though he expected practitioners to follow the rules, he also understood they needed a business model that allowed them to deliver a cost effective product to their consumer clients. “I tried to reassure them early on that I don’t have an ivory tower mentality of what the practice of law should be.”
In addition to his normal duties on the bench, Judge Sargis is involved with various aspects of the Eastern District, as well as the National Conference of Bankruptcy Judges (NCBJ), where he serves on the Legislative Committee.
He likes to point out to attorneys who are not moving their adversary actions fast enough that “Congress did you a big favor when it created bankruptcy judges. It allowed the judges to give bankruptcy court litigants their sole attention. Whether state law or bankruptcy law issues, as long as they relate to the case, you have my undivided attention. I am not worried about criminal cases, immigration cases, or family law cases.” As an example, he points to 2011-2012, which despite being very busy, bankruptcy courts were still able to process cases fairly fast. In fact, “many parties expressed interest in having their cases tried in bankruptcy court because of the backlogs experienced in state and district courts.” The bankruptcy court became a bit of a safety valve in which issues could be addressed reasonably fast. “With the NCBJ, the part that I am working with is recognizing the role of the bankruptcy court and how it can best be utilized to benefit debtors and creditors."
Asked how he feels about the judge’s courtesy copies of court filings, Judge Sargis is unambiguous, “No, no, well not in our court. We do everything electronic. I don’t want courtesy copies. No, thank you very much, but you don’t have to send it. Especially for the large pleadings.”
He likes to remind attorneys that a Local Rule requires them to file points and authorities separate from the motion, separate from the declarations, and separate from exhibits. “We want exhibits as separate documents for a reason. In a paperless environment if you give me a two hundred page combined document, I can’t flip through it. I can’t hold page six and look at page 43.”
He also wants attorneys to know, “as you know or may have heard, I’m what some may call ‘a persnickety judge.’ The rules require that your motion state with particularity the grounds for relief. Put the grounds up front. Don’t bury them in the points and authorities.” He also urges attorneys to be clear about what they want the judge to do. Some attorneys make it difficult for judges to rule in their favor due to a lack of clarity. “Be simple,” he recommends.
The Judge also wants attorneys to be mindful when they write briefs that the first reader is “usually not a judge with 20-30 years of experience as a lawyer and a judge. The first reader is usually an extern or a law clerk that is triaging the brief.” While he does not recommend “dumbing it down,” attorneys should understand the path the brief will take before reaching the judge.
Judge Sargis is assigned one law clerk and one judicial assistant. He also has two externs who come in part-time . “We start the externs with really simple motions. Part of my law clerk’s training is to manage the externs. I want them to learn how it feels to manage attorneys.” Once ready, externs get to draft parts of rulings. The draft rulings are then sent to the Judge’s law clerk, who assembles all arguments into one word processing document. Judge Sargis then makes his own edits electronically. When he takes the bench, the Judge has the word processing document in front of him. He makes further notes electronically, so that when he gets off the bench he can make final changes and send the ruling to his courtroom deputy for posting.
The Judge believes that it is important to allow attorneys and pro se parties to have their day in court, and makes a point to give everyone the opportunity to be heard. “When I put out a tentative ruling, it is tentative. You are going to get a chance to explain your side to me. So when people walk out of my courtroom, they may not agree with my ultimate decision but they should feel they had an opportunity, between the writings and the oral argument, to present their arguments. And they didn’t just get bum rushed.”
The Judge sees bankruptcy as the “art of the deal.” Attorneys and parties should figure out how to work together with other stakeholders. Another thing he tells attorneys is that he doesn’t like hearings to be conducted in unnecessary legalese. “I want everyone to understand what we’re talking about, whether it be the attorney’s client, an attorney who doesn’t practice regularly in bankruptcy court, or a pro se.”
Asked whether he sees trends pointing to future drastic changes in the bankruptcy practice, Judge Sargis states, “bankruptcy is very cyclical. So you have booms and busts, and it can get very challenging. We saw artificial swings in some respects in 2004 and 2005, when the Bankruptcy Code was amended. We also saw a big number of real estate cases from 2009 to 2011, and going into 2012. So bankruptcy practitioners have to recognize the cyclical nature of this practice and not assume that each downturn reflects a permanent change in the practice.”
This profile was written by Michael J. Gomez, of Frandzel Robins Bloom & Csato, L.C. in Fresno, CA (firstname.lastname@example.org). Editorial contributions were provided by Uzzi O. Raanan, of Danning, Gill, Diamond & Kollitz, LLP, in Los Angeles, CA (email@example.com).
Radmila A. Fulton
Law Offices of Radmila A. Fulton
John N. Tedford, IV
Danning, Gill, Diamond & Kollitz, LLP
Marcus O. Colabianchi
Duane Morris LLPmcolabianchi@duanemorris.com
Norton Rose Fulbright US LLP
The following is a judicial profile of the Hon. Laura S. Taylor, Chief Bankruptcy Judge of the United States Bankruptcy Court, Southern District of California. Gary Rudolph, a member of the Insolvency Law Committee, met with Judge Taylor to discuss her personal and professional background and her experience so far as a member of the bankruptcy bench.
Judge Taylor has known since high school that she wanted to be a lawyer because it blended her interest in law and the political process. After engaging in private practice, including taking time away from a successful bankruptcy and finance practice with a large law firm to represent disadvantaged families on a pro bono basis through a non-profit program she helped to found, she set a new challenge for herself that would best use her talents and interests–namely, to become a judge. Judge Taylor had two respected judges as mentors and role models to follow on this path to the bench–most immediately, her husband, the Hon. Timothy B. Taylor, Judge of the Superior Court for the State of California, and the Hon. Irma E. Gonzalez, United States District Judge (Ret.), who was Judge Taylor’s neighbor and whose daughter babysat Judge Taylor’s oldest son.
Judge Taylor grew up in Jamestown, North Carolina, before heading off to college at the University of North Carolina at Chapel Hill where, as a Tar Heel, she earned her B.A. with highest honors. She then moved over to Duke University School of Law where, as a Blue Devil, she earned her J.D. with honors. The regional powerhouse firm Sheppard, Mullin, Richter & Hampton LLP (“Sheppard Mullin”) then lured Judge Taylor to Southern California. She started as an associate and then served as a partner from 1983 through 1995 and from 1998 through 2007, practicing in the firm’s finance and bankruptcy practice group. Demonstrating her leadership and management skills, Judge Taylor for several years served as the firm’s San Diego office administrative partner.
From January 1995 through February 1998, Judge Taylor took a temporary leave from her firm to practice pro bono as one of the founders of the Special Education Project of the San Diego Volunteer Lawyer Program (“the Special Education Project”), which to this day continues to provide pro bono legal services to disabled foster youth and low income families with disabled children.
After a distinguished career in private practice, in January 2008, Judge Taylor was appointed to the bench of the United States Bankruptcy Court for the Southern District of California, and she is serving as Chief Judge through October 2019. In January 2013, Judge Taylor was appointed to a seven-year term on the Bankruptcy Appellate Panel for the Ninth Circuit Court of Appeals (the "BAP").
Apart from the many accolades that Judge Taylor has received and earned in her professional career, her proudest moments have come while practicing pro bono law, including for the Special Education Project. As noted, Judge Taylor took a break from her dynamic civil litigation practice at Sheppard Mullin to deal with the acute need for pro bono legal services in San Diego County for disabled foster youth and low income families with disabled children. Fueled by her desire to ensure that youth and families in need had access to basic legal services, Judge Taylor led the Special Education Project, drafting its hands-on manual and developing its training protocol for project volunteers. Through her work with the Special Education Project, Judge Taylor helped to give a voice to parents who could not otherwise afford to retain counsel to champion their side in disputes such as those with schools and school districts for special needs services. Judge Taylor says that nothing else in her legal career has given her the personal and professional fulfillment as she gained by helping parents and children and providing pro bono legal services hand in hand with other volunteers through the Special Education Project.
In recognition of her outstanding and tireless dedication and commitment to the Special Education Project, in 1996, the San Diego County Bar Association bestowed its coveted Public Service Award on Judge Taylor. In 1997, the San Diego Volunteer Lawyer Program recognized Judge Taylor as its Attorney of the Year and the State Bar of California bestowed Judge Taylor with the State Bar President’s Pro Bono Service Award.
No longer in private practice, Judge Taylor says what she misses most are the interaction and camaraderie with colleagues and the intellectual challenges presented to her by clients at her old firm. She reports, however, not missing the competitive component of the “business” of law practice and pressure to find new clients. On the bench, she knows “new business” is always heading her way.
In transitioning from private practice to the bench, Judge Taylor was able to bring with her the skills she nurtured as a lawyer. She is an avid writer who also enjoys and welcomes oral argument. As a lawyer, she appreciated receiving tentative rulings before hearings. Now on the bench, she has developed the practice of crafting detailed tentative rulings to help frame arguments and colloquy between the bench and bar.
Outside of her pro bono work on behalf of disabled children and for families in need of special education services, Judge Taylor’s work at Sheppard Mullin seldom touched on consumer bankruptcy and consumer commercial law issues. Now on the bench, Judge Taylor has dived into this arena with relish. She gives much credit to her quick learning curve in this arena to the high quality of the consumer bankruptcy lawyers who appear before her; they help to heighten her understanding of the consumer bankruptcy issues facing consumer debtors and their creditors.
Among her least favorite issues she has had to deal with on the bench are budget challenges for the court system and jurisdictional questions arising from the Supreme Court’s Stern v. Marshall decision and its progeny.
As Chief Judge, Judge Taylor recognizes she is “the face of the court.” Always one to roll up her sleeves and get to work, this hands-on judge employs and relies on committees within the court and among practitioners in the community to broaden input and share the workload, all with the goal of achieving more efficient operations at the bankruptcy court and a higher quality of practice before the bench. Judge Taylor currently chairs the Local Rules Advisory Committee of the Southern District Bankruptcy Court and has led the effort to redraft the court’s Local Rules, with input and active participation of other San Diego bankruptcy judges and leaders in the local bankruptcy bar. She also serves on the Federal Judicial Center’s Chief Judge Education Committee, which is working to develop a curriculum for chief judge leadership and problem-solving skills. Judge Taylor actively participates in educational programs including those presented by the State Bar of California, the San Diego and California Bankruptcy Forums, and the National Conference of Bankruptcy Trustees, among others. She is an active member of the National Conference of Bankruptcy Judges and serves as chair of its United States Trustee Liaison Committee. In addition, recognizing her roots as a civil litigator, and still giving back to the community, she serves as a Master of the Bench in The Louis M. Welsh American Inn of Court.
Judge Taylor is near the end of her initial seven-year term on the BAP. The desire to serve as a judge on the BAP evolved from her passion for writing and her interest in “collaborative judging.” The assignment, she says, requires her to think about cases differently than if she were the trial judge and allows her to work with fellow jurists in formulating a panel’s decision, or from time to time to test ideas as she develops a dissent.
Judge Taylor believes that serving as an appellate judge on the BAP has enhanced her trial judge skills, giving her a different perspective, with the benefit of hindsight and more time to reflect. The role also affords her the opportunity to develop case law through decisions and published opinions.
Judge Taylor recognizes that many pro se litigants are looking for someone to listen to their story. Judge Taylor believes that by taking the time to explain the law to pro se parties and by treating them fairly, the majority will come away with a better understanding of the judicial system and the decision reached in their case, even if adverse to them.
When writing a brief or presenting a legal argument to Judge Taylor, the judge asks counsel to adhere to just a few simple rules. Most of all, don’t put the judge to sleep or confuse the issues. Take the time to make sure your brief is well written. Present your arguments clearly and concisely. Guide the court from point A to point B, with clarity and without obfuscation.
In court, be respectful both in presenting your oral argument and while opposing counsel makes their case. Do not even think about rolling your eyes as opposing counsel makes an argument with which you disagree. Professionalism is the core principle for Judge Taylor. If you have a compelling case, lay out the facts. Be eloquent and forceful in your arguments, without flapping and flailing of arms.
Judge Taylor’s tentative rulings are guideposts to her thought process. She is transparent about what she is thinking. The tentative rulings give lawyers a chance to process their oral argument ahead of time. If you disagree, take the time to develop and present your reasoning to Judge Taylor.
When preparing for oral argument after reviewing the tentative ruling, litigants need to keep in mind the need to have a strategy for creating the best record for a possible appeal. The hearing or trial is the litigant’s opportunity to create their record to frame their arguments for appeal of any adverse ruling. The tentative ruling gives counsel extra time to address the Court’s concerns and issues that in her mind dictate the result and ruling.
Judge Taylor forecasts that the smaller to mid-size tech companies that are based in the San Diego and surrounding area will be filing bankruptcy in the Southern District of California. This is already an increasing source of cases. Judge Taylor is looking forward to getting more clarification in appellate court decisions regarding equitable mootness and a clearer articulation of the standards for a court to award sanctions.
When Judge Taylor leaves the bench at the end of a day, she looks forward to quiet family time, cooking, traveling, and reading. And each new day, she and her husband take early morning walks together by the Coronado Bay–thankful for their lives in San Diego.
This judicial profile was written by Gary Rudolph, a partner with Sullivan Hill Lewin Rez & Engel APLC in San Diego, California ( firstname.lastname@example.org). Editorial contributions were provided by his partner, James Hill ( email@example.com).
Radmila A. Fulton
Law Offices of Radmila A. Fulton
John N. Tedford, IV
Danning, Gill, Diamond & Kollitz, LLP
Marcus O. Colabianchi
Duane Morris LLP
Rebecca J. Winthrop
Norton Rose Fulbright US LLP
The following is a profile of the Honorable Maureen Tighe – the seventh in a series of profiles of Ninth Circuit bankruptcy judges. Judge Tighe and members of the Insolvency Law Committee met in her chambers and discussed her personal and professional background, observations from the bench, and issues of interest.
Judge Tighe was appointed to the bench in November 2003. Prior to her appointment, she was the United States Trustee for the Central District of California between 1998 and 2003, the U.S. Trustee for the Districts of Southern California, Hawaii, Guam, and the Northern Mariana Islands between 2002-2003, and was an Assistant United States Attorney between 1988 and 1998. While an Assistant United States Attorney, Judge Tighe served as the Deputy Chief of the Major Frauds Section and Chairperson of the Bankruptcy Fraud Taskforce. On the bench, Judge Tighe has dedicated a significant amount of time to issues relating to pro se litigants, including preventing fraud and encouraging pro bono advice and improving processes for pro se litigants.
Judge Tighe understands and respects the roles that party representatives and attorneys have in the process and how that bears on the positions and actions they take in any given case. She notes, for example, that “the trustee has fiduciary responsibilities and sometimes can’t settle even if the trustee wants to,” and that attorneys must zealously advocate for their client (a trait the Judge “feels strongly about”).
An important issue to the Judge is having a robust and qualified bankruptcy bar. “We are all part of a system, part of the whole and we have to get along.” The judge reflects that “you can still be a zealous advocate and be collegial” and that lack of collegiality could sometimes impact a person’s reputation.
But the Judge does not take reputation into account in issuing a ruling. She admits, however, that reputation could come into play when evaluating whether an attorney will be able to back up what they are proffering and the representations they are making. “If the attorney has proven credibility, I usually give them a chance to show it and come through.” She notes that “if you are up front with problems, that helps.” Where an attorney has consistently made statements and failed to support them, she naturally is less inclined to accept their representations at face value.
Mentoring of new attorneys is another thing Judge Tighe feels strongly about. “We need to continually work on training new lawyers. Junior lawyers don’t get into court enough. We need to do more mentoring.”
After a few years on the bench, Judge Tighe realized that the greatest challenge the court faces relate to pro se litigants and inexperienced or untrained attorneys, including junior solo practitioners without mentors, who come to court without understanding the relief they need or should be seeking. While Judge Tighe recognized that “we have a fantastic and robust bankruptcy bar with mentoring, training, an excellent trustee panel and trustee’s attorneys,” she lamented that still “not enough was being done on the pro se issue.” She explained that no-asset cases were taking a lot of time but that justice was not always being done because relevant issues were not being raised, and that unrepresented (or inexperienced) parties were not seeking the appropriate or necessary relief.
Judge Tighe took action. For the past approximately 13 years, the Judge has worked to assist pro se litigants, with a particular focus on combatting consumer bankruptcy fraud, such as the malfeasance of “petition preparers” or other individuals who claim to help pro se litigants, then charge substantial sums for claimed services, but provide little to no actual value. As the Judge explains: “I wanted to be transparent and provide access to all, and I wanted to approach the problem creatively. Access to the court means stopping fraud. The amount of consumer fraud is ridiculous, such as people taking money to do nothing meaningful.” She sees all sorts of scams marketed to stop foreclosure, identity theft, and people taking advantage of non-English speaking communities. “The self-help center pioneered by Neighborhood Legal Services and the San Fernando Valley Bar Association has made a big difference. The outreach they do also frees up court resources for things only the court can do.”
Judge Tighe believes that tentative rulings are helpful to the process. “People tease me about how long they are. It’s not Shakespeare or beautifully written or edited. It’s to get the tentative rulings out there and make for more meaningful oral arguments.”
She is gratified that her tentative rulings have changed the way that attorneys prepare their briefs. In one of her chapter 11 plan tentative rulings, Judge Tighe went through her considerations in approving the plan. As a result, she says, “[n]ow, chapter 11 plan briefs go through my original tentative regarding the requirements.”
Attorneys should keep in mind that “a tentative is just a tentative ruling.” Judge Tighe believes strongly in meaningful oral argument and encourages attorneys to be zealous advocates, even if the tentative ruling is not in their favor. “If [a tentative ruling] were a [final] ruling there wouldn’t be oral argument.” If attorneys believe that the Judge overlooked an important fact, or did not address relevant authority, it should be brought to the Court’s attention. The Judge cautions that sometimes it is best to know when not to argue – the Judge sees attorneys making arguments when they’ve already won, which “is risky.” But she is mindful that sometimes argument is necessary because the client is in the courtroom and “you have to keep up client relations.” The Judge recognizes that clients sometimes need to see an attorney advocating on their behalf, even if they have an uphill battle.
For pleadings, “the introduction and a synopsis of facts are really key. Mostly the facts. It’s also helpful to summarize voluminous figures in charts.” Like many judges, Judge Tighe often starts her review of pleadings with the reply brief. “That shows exactly where the differences are. It’s really important in some cases.” For that reason, the Judge explained that the court may not begin reviewing the briefs until responses have been filed. Judge Tighe emphasizes the importance of presenting evidence in support of motions and remarked that “it’s amazing how little evidence we get.” She also stressed the importance of clearly stating the relief sought.
Although testimony is often presented at trial through declarations, Judge Tighe prefers live trials – it allows her to assess witness credibility. She believes that trial declarations will almost always have been drafted by counsel with an eye toward advocacy. However, she will accept declarations “if that’s what the parties really want.” The Judge believes that “evidentiary objections are usually a waste of time” prior to trial. “I’d rather you raise the objections at trial unless it is something unusual. At trial, hearsay objections are worth making. Federal Rule of Evidence 801(d)(2) is something that people often don’t understand. People think that since one side can solicit an opponent’s statements, they can offer their own statements, but it doesn’t work that way.”
In regard to documentary evidence, Judge Tighe is not strict on authentication of documents. “Document custodians are not usually necessary if there is no real dispute on authenticity. But you have to jump through the required hoops on documents recovered from computers and e-mails if objections are made because there are so many ways to doctor documents now.” One situation that comes before the court is when trustees take over businesses and get business records from hostile records custodians. “The trustee doesn’t have a documents custodian and people generally don’t want to cooperate. It’s a fascinating and tough issue that I get repeatedly. I look at the speed at which the hearing is held and look at extenuating circumstances. The rules give some discretion.”
For status conferences, “I like the principal of the debtor to be present and know the duties and what’s expected. If they hear it from the judge it’s easier to get compliance.”
As to late-filed pleadings, the Judge comments “I don’t know why people do that. I probably won’t end up reading it. They should just present the argument verbally at the hearing.” Whether Judge Tighe will take late-filed pleadings into consideration depends on the reason for the lateness, whether the filing party is pro se, and whether there is prejudice to the other parties who filed pleadings timely and were ready.
For oral arguments, Judge Tighe requires civility and appreciates professionalism. “I don’t like it when people interrupt the other side in oral arguments. I go back and forth multiple times and generally don’t cut people off. I don’t like personally mean ad hominem attacks. Attorneys need to take a step back and stick with the facts.”
Judge Tighe disapproves of venue/forum shopping. She makes sure to look at the issue of venue closely and is wary of venue decisions made for the purpose of making it more difficult for parties to appear and be heard. One of the Judge’s overriding concerns is ensuring that all parties have equal access to the court.
On the issue of local rules, the Judge takes a balanced approach. Although the rules are not perfect, the Judge believes that they are useful so long as they promote due process, equal access, and overall fairness.
Judge Tighe works closely with her law clerks on issues, and respects their analyses on the outcome of motions. “I love having the law clerks. It is fascinating to have them around.” The Judge’s clerks provide the relevant pleadings, along with a summary sheet with recommendations, to the Judge. In fact, the Judge requires that her clerks provide her with recommendations as to how she should rule, rather than just providing objective summaries of fact and law. The Judge does not always follow her clerks’ recommendations but she wants them to “grasp and grapple with the issues.” The clerks always double check key cases and provide the Judge with a notebook of key cases to read. The Judge and her clerks then talk through the issues if there are differences of opinion on the outcome.
Judge Tighe believes in adopting technology to improve workflow and does some of her work remotely (and hopes that as technology advances her capabilities will as well). She now reviews most pleadings on a computer or tablet, and is starting to take notes electronically. The Judge is trying to transitioning to a more paperless chambers.
One issue she notes is that when judges review pleadings online through Pacer, it becomes clear that attorneys do not always take care in how they upload pleadings. If the pleading is not correctly linked, such as an opposition or order being linked to the relevant motion, it is more difficult for the Judge to review the applicable pleadings for a hearing. Judge Tighe would like to see the Local Rules require fewer Chambers copies.
Judge Tighe thoroughly enjoys her adopted State of California, enjoys hiking and is looking forward to hiking along the California coast someday. “I couldn’t live anywhere not as diverse and interesting.” She has more time to hike now, with her daughter in college. The Judge clearly enjoys her role as a judge and finds particularly interesting small business reorganizations (even though she notes that unfortunately these companies sometimes wait too long before seeking relief).
She also appreciates the freedom that comes along with being a judge. She takes great pride in studying and examining the law in a manner that would not otherwise be possible. “It is wonderful to be totally independent. It is as pure as the law gets. I can spend as much time as I want on issues, including no asset cases.” She also speaks very highly of her judicial colleagues and is very appreciative of the advice and guidance they have provided her over the years. In her words, “the judges like each other, and it’s amazing to be part of a group where everyone wants everyone else to do well.”
During a recent speech accepting the Co-Presidents Award from the LGBT Bar Association of Los Angeles, Judge Tighe encouraged attorneys to be “part of something larger than themselves.” The issues involving pro se litigants are issues that involve not only the individuals, but also the court system as a whole. Those attorneys interested in volunteering to assist pro se litigants can find out more on the court’s website: http://www.cacb.uscourts.gov/pro-bono-opportunities.
This article was written by Corey R. Weber (firstname.lastname@example.org), a partner at Brutzkus Gubner Rozansky Seror Weber LLP, a member of the California State Bar’s Business Law Section Executive Committee and immediate past Co-Chair of the Insolvency Law Committee (ILC); Asa S. Hami, an attorney at SulmeyerKupetz, A Professional Corporation, and Co-Chair of the ILC (email@example.com), and Michael W. Davis (firstname.lastname@example.org), an attorney at Brutzkus Gubner Rozansky Seror Weber LLP and member of the ILC.
Insolvency Law Committee
Macdonald Fernandez LLP
Radmila A. Fulton
Law Offices Radmila A. Fulton
John N. Tedford, IV
Danning, Gill, Diamond & Kollitz, LLP
The following is a profile of the Honorable Thomas B. Donovan – the sixth in a series of profiles of Ninth Circuit bankruptcy judges. Judge Donovan and members of the Insolvency Law Committee met in his chambers and discussed his personal and professional background, observations from the bench, and issues of interest.
Judge Donovan was appointed to the bench in March 1994, and reappointed in 2008. Although his current term expires in 2022, he plans to retire as of March 24, 2017.
Judge Donovan grew up in San Jose, California. In high school, he was a competitive golfer, and considered a professional career in the sport. Instead, he enrolled in college and married his high school and college classmate during his junior year. He reflects that he could not imagine his wife being excited about the prospect of him choosing a professional golf career, and clarifies that in those days such a career did not offer the same benefits that it does now.
The judge spent two years at San Jose State College and transferred to the University of California at Berkeley, where he received his BA degree in 1957. For the next two years, he served in the U.S. Army Security Agency, where he held a position that was “top secret, fun, interesting and gave [him] an opportunity to roam around Washington, D.C.” When the Army learned about his golf skills, he “was ordered to play golf” for the Army’s team. That got the judge an extra day off from his military duties each week. After two years in the military, Judge Donovan had the opportunity to stay in the Army, leave government service, or take another position with another governmental agency. “I could have written my own ticket,” he says. Instead, he chose to enroll in law school back in California, ending his path toward a career in golf.
The judge last hit a golf ball fourteen years ago, joking that he’s a five-time recovering golfer. He readily admits that he had an obsession with the game and found that being a judge and a golfer were both “all-consuming” and incompatible. He chose the bench over the fairway.
After law school at Boalt Hall, at the University of California, Berkeley, the judge spent a brief time as an associate at Covington and Burling in Washington, D.C. He and his wife returned to California in 1964, and Judge Donovan joined Dinkelspiel and Dinkelspiel, an eleven-attorney, seven-partner firm in San Francisco, California.
On his first day at the new firm, the bankruptcy partner handed the judge an assignment on a case where the firm represented the chapter 7 trustee. The case involved an issue under the Bankruptcy Act where the debtor wrote checks post-petition from a corporate bank account, and the trustee filed suit against the bank to recover the funds. When Judge Donovan prevailed in the bankruptcy and district courts, the bank appealed to the United States Court of Appeals for the Ninth Circuit.
Having done such a great job to that point, Dinkelspiel let Judge Donovan argue the appeal. Though he wanted to argue the case on the merits, “in a fit of conscience” at the start of oral argument, Judge Donovan told the appellate panel that, because the trustee had in fact received the disputed funds from the debtor, the appeal might be moot. The judges on the panel huddled together and, after what appeared to be some “snickering,” announced that argument on the merits should proceed and “we’ll see what happens.” In a unanimous decision, the panel ruled in favor of Judge Donovan’s client on the merits.
The bank filed a Petition for Writ of Certiorari with the Supreme Court, which was granted. The judge’s first assigned case at the Dinkelspiel law firm had become a United States Supreme Court case and, only four years out of law school, the judge was allowed to present at oral argument. He notes that he argued the case vigorously and that “it was fun to match wits with the justices.”
While his opponent was barely challenged, Judge Donovan’s time was extended for twenty minutes by the court to accommodate the barrage of questions he received. At the end of oral arguments, the clerk of the court shook his hand and told him it was a great argument. A month later, the Supreme Court reversed. Six justices joined the majority decision authored by Justice Douglas, with Justice Harlan dissenting and Justice Fortas writing separately that he would remand the case with instructions to dismiss. See Bank of Marin v. England, 385 U.S. 99 (1966). Regardless of the outcome, it is clear that the judge thoroughly enjoyed his experience arguing before the Ninth Circuit Court of Appeals and the U.S. Supreme Court. To read the Supreme Court’s opinion in the Bank of Marin v. England, click here.
Judge Donovan remained at the Dinkelspiel firm for five years, was elected partner, but instead decided with four of his friends at the firm to leave to create a new law firm that eventually became the law firm of Dinkelspiel, Donovan and Reder. Starting the new firm was a big risk because “we all had small kids and mortgages.” However, he reminisces that things “worked out nicely and that, since then, nobody ever told me what to do or how to do it. It was all on me.”
Around the age of 43, the judge took a three-month sabbatical. He asked the presiding judge for the Oakland-Piedmont Municipal Court, a social friend, whether he could volunteer at the court for about a month. On his first day at the court, to his surprise his friend handed him a robe and showed him to a courtroom. For the next month, Judge Donovan presided over approximately 800 small claim cases, heard the law and motion calendar, acted as a settlement officer, and presided over a civil trial. “I loved the experience of hanging out with the judges and seeing how they related to each other.”
Partly based on that experience, Judge Donovan decided that he wanted to serve as a bankruptcy judge, but waited until his two children graduated from college before applying. Though he lived in Berkeley, he recognized that the bankruptcy judges in the Northern District of California were all fairly young and had ten or more years left on their 14-year terms, so there were likely very few positions to become available. After coming in as a finalist for a single opening in the Northern District, he applied for a position that opened in the Central District of California. This time, he was offered, and accepted, the judicial appointment.
The judge speaks glowingly about his permanent law clerk, Candace Crociani. “She’s my partner and chief of staff. Everyone knows and likes her. She also keeps me from wandering off in a direction that I shouldn’t be going in.” Judge Donovan adds, “We get a lot of routine issues and about 1-3 tricky issues per week. It’s the difficult issues that take up most of our time. Without those cases, though, the job wouldn’t be as interesting.” The judge’s management style involves “a lot of collaboration with the law clerks and externs. We talk a lot about the tough issues.” Judge Donovan’s ultimate test on each decision is whether it is “fair, just and correct. I don’t want to impact people unfairly. I want to do right by everyone.” The judge enjoys being a trial judge, and does not spend time worrying about how issues might come out on appeal.
Judge Donovan has presided over a number of high profile cases. One such case is Law v. Siegel, involving the bankruptcy court’s authority to surcharge the homestead exemption of a debtor who engaged in certain misconduct. The case made its way to the United States Supreme Court, which held that, under the circumstances of that case, the Chapter 7 trustee could not surcharge the debtor’s homestead exemption to pay for his legal fees. Click here for the full decision.
Judge Donovan was also presented with the important landmark issue of whether a same-sex married couple could jointly file a chapter 13 petition. The case was originally Judge Ahart’s case, but became Judge Donovan’s case when Judge Ahart moved to the Woodland Hills courthouse. The Office of the United States Trustee filed a motion to dismiss the case on the grounds that the debtors did not have the right to file a joint petition based on the Defense of Marriage Act (DOMA).
The debtors and their attorney Peter Lively approached David Stern and Robert Pfister of Klee Tuchin Bogdanov & Stern LLP to help, and they agreed. Stern, Pfister and Lively filed a roughly one hundred-page brief that Judge Donovan describes as “the best brief I’ve ever read.” The other bankruptcy judges in the Central District were tracking the case closely and asked Judge Donovan to share his decision before it was issued. The judge agreed to do so, but let the other judges know that the decision would be his own. He spent every free hour he had reviewing cases and considering the issue. He concluded that the married debtors had a constitutional right to file a joint petition, and that dismissing the petition based on DOMA would violate the debtors’ due process and equal protection rights. The judge circulated his final draft decision to his Central District colleagues and was surprised that 19 of them voluntarily joined him in signing the decision supporting the right of the debtors to file a joint petition. Following a short-lived appeal that was quickly withdrawn, the Department of Justice announced that it would no longer defend DOMA. Judge Donovan dismisses suggestions that he was “brave” to issue his decision in In re Balas and Morales. “I ruled based on what I concluded was the correct interpretation of the law. I just did my job.” To read the Memorandum of Decision in In re Balas and Morales, click here.
The judge’s current term on the bench expires in March 2022, but he is retiring this coming March 2017. Despite his and Judge Richard M. Neiter’s upcoming retirement, the judge notes that the Ninth Circuit has not announced any intent to appoint new judges to fill the two empty seats. “There are not enough cases to warrant a new appointment. In my 22 years on the bench, it’s never been so slow.” The judge reflects that “it’s really been a privilege to serve as a judge. I feel really lucky that the powers-that-be gave me the opportunity. It has been challenging, fun and a serious responsibility.”
In a move that may surprise bankruptcy practitioners, in retirement, Judge Donovan plans to study astrophysics; in particular, what we know about the universe and recent developments. “I’d like to befriend an astrophysics professor at Cal Tech and follow them and learn.” Although Judge Donovan may still hear some cases post-retirement, it seems more likely that he will delve into other issues of interest with the same level of attention that he has given to the law as an attorney and judge for fifty-five years.
This article was written by Corey R. Weber (email@example.com), a partner at Brutzkus Gubner Rozansky Seror Weber LLP, a member of the California State Bar’s Business Law Section Executive Committee and immediate past Co-Chair of the Insolvency Law Committee (ILC); Uzzi O. Raanan, a partner at Danning, Gill, Diamond & Kollitz, LLP, Vice-Chair of the California State Bar’s Business Law Section and Past Co-Chair of the ILC (firstname.lastname@example.org); Leib Lerner, a partner at Alston & Bird LLP and immediate past Co-Chair of the ILC (Leib.Lerner@alston.com); and Asa S. Hami, an attorney at SulmeyerKupetz, APC, and Co-Chair of the ILC (email@example.com).
Macdonald Fernandez LLP
Asa S. Hami
SulmeyerKupetz, A Professional Corporation
Radmila A. Fulton
Law Offices Radmila A. Fulton
John N. Tedford, IV
Danning, Gill, Diamond & Kollitz, LLP
The following article is a profile of the Honorable M. Elaine Hammond – the fifth in a series of profiles of Ninth Circuit bankruptcy judges. Judge Hammond and members of the Insolvency Law Committee met in her chambers and discussed her personal and professional background, observations from the bench, and issues of interest.
Judge Hammond calls Charlotte, North Carolina her hometown. She received her undergraduate degree from Duke University, and her law degree from the University of North Carolina School of Law. A “big basketball fan,” Judge Hammond graduated from Duke the same year as Christian Laettner, an “intense, very disliked” athlete who led Duke to two NCAA National Championships.
Judge Hammond enjoyed a broad liberal arts education at Duke. After receiving her undergraduate degree, she worked for three years before starting law school. During this period, Judge Hammond worked both at a large mortgage bank, and at a small, general practice law firm in Charlotte. At the small firm, Judge Hammond had her first experience assisting with a broad array of matters, including personal injury litigation, business transactions, and family law cases. It was then that Judge Hammond realized that she enjoyed the law, and welcomed the challenge of working on a range of issues, involving a mix of topics and clients.
When asked what brought her to the Bay Area, Judge Hammond’s response can be summed up in one word: love. She met her husband in law school, and he had a job lined up in Fenwick & West’s Palo Alto office after law school. Believing that her move would be for “two years only,” Judge Hammond took and passed the California Bar, clerked with Bankruptcy Judge Edward Jellen (ret.), and set down new roots with her family in the Bay Area.
Judge Hammond interviewed for her clerkship position with Judge Jellen in the summer before her 3L year, before she had any bankruptcy knowledge or experience. She feels she “lucked” into the position with Judge Jellen, and started her two-year clerkship in Judge Jellen’s chambers after taking the California Bar exam.
Describing Judge Jellen as “wonderful” and “a pleasure” to work with, Judge Hammond noted that he was very skilled at putting disputes in context. A very practical judge, Judge Jellen explained to her that the issues resolved in court often represented only the tip of the iceberg. Judge Jellen also would bring counsel into chambers after contested hearings where he saw the parties butting heads, and recommend that they discuss whether a business resolution may be a better idea than having the court decide. Judge Hammond acknowledges that her time in Judge Jellen’s chambers was a “great education,” and helped build the foundation for her judicial values today.
After her clerkship, Judge Hammond spent several years at Murphy Sheneman Julian and Rogers, working closely with partners Pat Murphy, Andrea Porter, and Richard Adler. She felt that it was a tremendous experience for her (and any young lawyer) to learn from those who know what to do in any given situation. Judge Hammond noted that while working at the Murphy Firm she gained valuable insight into how bankruptcy works from the top down, and learned to appreciate that chapter 11 matters are often best resolved by compromise. Judge Hammond remarked that bankruptcy is not necessarily a “zero-sum dispute” as in many cases, parties’ relationships do not end once the case is concluded.
At the Murphy Firm, Judge Hammond had a spectrum of representative experience in chapter 11 cases, representing debtors, secured and unsecured creditors in main case matters and in adversary proceedings. Shortly after Murphy Sheneman merged with Winston & Strawn, Judge Hammond chose small firm life over “big law” and joined several lawyers in a split-off firm, Friedman, Dumas & Springwater. She stayed at that firm, ultimately becoming a partner, until she took the bench in February 2012.
Judge Hammond first applied to join the bankruptcy bench when Judge Newsome retired after 28 years. Observing that Judge Tchaikovsky had been on the bench for 23 years and Judge Jellen, for 25 years, Judge Hammond realized tenures on the Northern California bench tended to be long and felt this was the time to start applying. Though Judge Hammond did not receive the appointment the first time she applied, the second time was the charm, and she was appointed to replace Judge Jellen.
Judge Hammond described the application process as challenging and she appreciated Andrea Porter’s encouragement and mentoring throughout the process. In particular, she noted that the panel for the second round of interviews included Court of Appeals Judges and the Chief Bankruptcy Judges. As Judge Hammond remarked: “They really know how to ask questions.” Once on the bench, however, Judge Hammond was impressed with how supportive the Ninth Circuit judges are of the bankruptcy bench.
Once she received her appointment, Judge Hammond interviewed other bankruptcy judges to get their advice, and sat in on trials and motion calendars to observe how other judges handled situations. The other judges were very friendly and supportive of her efforts as a soon-to-be new judge.
Though she thought being a judge would be a good job (“Why else apply?”), Judge Hammond has been pleasantly surprised by how much she really enjoys the job. Though more isolated than a job in private practice, she finds tremendous satisfaction in working with law clerks and judicial assistants, and appreciates the camaraderie and feedback from other judges, particularly on “close cases.” Rather than “living” a case as she once did as a lawyer, Judge Hammond thrives on her involvement as a judge in numerous matters, some of which have a long history before reaching the bankruptcy court. While her private practice was focused on business cases and very little consumer work, Judge Hammond has enjoyed the work on chapter 7 and chapter 13 matters and getting to know the attorneys who specialize in a consumer practice.
Judge Hammond enjoys handling trials, the give and take between attorneys, and the testimony of live witnesses. She noted that she lets counsel try their own case and is unlikely to intervene with her own questions unless she needs testimony to be clarified.
Asked to what extent she may encourage settlement from the bench, Judge Hammond noted that attorneys and parties sometimes lose sight of the fact that a practical solution to a dispute is often a very good resolution. When she thinks parties are listening or appear receptive, or where the parties have a longstanding dispute where the bankruptcy court is new to the dispute, she may encourage parties to discuss a business resolution.
Judge Hammond stresses that attorneys should proofread their court submissions, know their objections, be courteous in their papers, and make their case. She finds that attorneys can sometimes get caught up in attacking the other attorney, or the other party. Judge Hammond noted that such an approach does not help any party’s argument and is very tiresome to the court, as complaining about your opponent does not assist the court in deciding the case.
When asked what she sees developing in terms of the court and the way it handles matters, Judge Hammond noted that after Bankruptcy Judge Arthur S. Weissbrodt retired, the Ninth Circuit Court of Appeals has not filled his position. Bankruptcy Judge Hannah L. Blumenstiel, seated in San Francisco, is hearing the Salinas chapter 13 cases; and Bankruptcy Judge Dennis Montali, also seated in San Francisco, is taking one-third of all of San Jose’s chapter 7 and chapter 11 cases.
Judge Hammond remarked that the Northern District is in the process of moving from a group of four divisions to a district with shared practices, procedures and staff. When asked about the volume of bankruptcy cases, Judge Hammond is persuaded that bankruptcy filings will increase and the court will be busier. However, despite the invitation to play prognosticator, Judge Hammond declined to give a guess as to when that might happen.
Judge Hammond enjoys spending time with her husband and two children. She loves being a parent and actively volunteers in her community, including as Girl Scout leader.
Judge Hammond also loves to travel. In fact, Judge Hammond and her family visited the island nation of New Zealand over the most recent Christmas holiday. Judge Hammond also enjoyed attending the annual Ninth Circuit judicial conference which took place this month in scenic Big Sky, Montana.
When she has a quiet moment to herself, Judge Hammond also loves a good book. She highly recommends All the Light We Cannot See, by Anthony Doerr, the New York bestseller about a blind French girl and a German boy whose lives intertwine in World War II occupied France. Judge Hammond also enjoys watching movies, having enjoyed both Spotlight and The Big Short. Finally, drilling down on what’s truly important, Judge Hammond roots for the Duke Blue Devils over the UNC Tar Heels; and she prefers eastern North Carolina-style, vinegar-based BBQ sauce over its western-style tomato-based counterpart.
This article was written by Monique D. Jewett-Brewster of Hopkins & Carley in San Jose, California (firstname.lastname@example.org), Immediate Past Co-Chair of the Insolvency Law Committee, and Stephen D. Finestone of the Law Office of Stephen D. Finestone in San Francisco, California (email@example.com), member of the Insolvency Law Committee.
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Brutzkus Gubner Rozansky Seror Weber LLP
Asa S. Hami
SulmeyerKupetz, A Professional Corporation
Macdonald Fernandez LLP
The following article is the fourth in a series of profiles of Ninth Circuit bankruptcy judges. Judge Meredith Jury and members of the Insolvency Law Committee met in her chambers and discussed her personal and professional background, observations from the bench, and issues of interest.
Judge Jury is a United States Bankruptcy Judge in the Central District of California, with chambers in the City of Riverside. She was first appointed to the bench in November 1997, and reappointed in 2011. She also serves as the Chief Judge of the Ninth Circuit Bankruptcy Appellate Panel (BAP), having been appointed to that Court in 2007 and reappointed in 2014.
Judge Jury received her undergraduate degree in English, with minors in History and Journalism, from the University of Colorado. After experimenting with teaching, she obtained a law degree from UCLA in 1976. Following law school, she accepted a job as the first female associate at Best, Best & Krieger, LLP, a Riverside-based firm, where she became a well-respected litigator handling complex litigation cases. She subsequently became the firm’s first female partner and happily practiced at the firm for over twenty years.
Due to her strong reputation as a litigator, Judge Jury was asked to apply for a newly-created position of United States District Court Judge in Riverside. While she did not get that assignment, by the time the position of United States Bankruptcy Judge in Riverside became available a short time later, Judge Jury was intrigued. She applied for and was selected for the position.
The transition from private practice to the bench was easy for Judge Jury. She says, “I knew what I liked and didn’t like about how courtrooms were run. I still call my calendar the way Judge Naugle did.” One thing the judge misses about private practice is having clients. “I had some great clients, mainly small businesses. I miss my relationships with these clients.”
Judge Jury talks of her “day job and night job,” serving as a bankruptcy judge and as a BAP judge. As she describes it, “my day job is to write novels, and my night job is to review novels….The standard of review is everything on appeal. I didn’t think of that as a trial judge.”
For the BAP, the judge usually reads the bankruptcy court ruling first and moves backward from there. She reviews the record on appeal before she reviews the parties’ briefs. “We get the bench memos one week before oral arguments and independently review them before the oral arguments. The judges on the panel discuss the cases at dinner the night before. We like consensus, and feel better about a 3-0 decision. When there’s a dissent, it’s an intellectual exercise and usually a close call, and we want the Ninth Circuit to review the issue. It’s the same thing with a concurrence. It’s a way to get a position in front of the Ninth Circuit.” After the BAP decides the issue, if there is a further appeal, the Judge comments, “I have an intellectual curiosity as to what the Ninth Circuit will do, but it’s out of my hands.”
Judge Jury is keenly aware that the BAP writes for four audiences: (1) the parties, (2) other bankruptcy judges, (3) the Bar, and (4) the Ninth Circuit. “We try to make it as persuasive as possible.” She believes that, with very minor exceptions, judges on the Ninth Circuit understand and respect the value the BAP adds to the bankruptcy appellate process.
Although the judge believes that the BAP’s decisions are important, she agrees that “some bankruptcy judges do not believe they are bound by the BAP’s decisions. I don’t feel bound by BAP opinions. The BAP can’t be binding precedent because District Court decisions aren’t binding precedent. You can’t have one appellate court as precedent and not the other.” However, the judge also notes that most bankruptcy judges follow BAP opinions. In fact, she states that, “95% of the time I follow the BAP and cite the BAP. Most bankruptcy judges do.”
Though she notes that the majority of oral arguments do not affect the outcome of the BAP’s decisions, Judge Jury still believes they are important. Following oral arguments, BAP panels discuss each case and, a small percentage of the time, pre-oral argument positions change.
On the impact of Stern v. Marshall, the judge states that “it hasn’t changed my day job or night job. Almost all parties consent to final judgments being entered by the bankruptcy court, even in fraudulent transfer cases.” Judge Jury believes that district courts look at reports and recommendations from bankruptcy courts differently than appeals from bankruptcy courts, and that the district courts are likely to follow the bankruptcy court’s reports and recommendations.
Judge Jury enjoys her role as a bankruptcy judge, and as a member of the BAP. “I have the best job in the world. I get incredible stimulation from my job and learn something new every day.”
She is very cognizant that each time she rules, it impacts a party. The judge notes that “the hardest thing to do is rule against a good lawyer when they did a good job for their client but the law or the facts are against them. I state the tentative ruling orally in court. It’s hard, but necessary. It’s more active than a passive written tentative. I analyze better when I must orally explain my decision, a very active thinking process.”
The judge is well known for presiding over the City of San Bernardino bankruptcy case. She reflects that, “Chapter 9 is expensive and it’s really a last resort. There is not really much appellate law on Chapter 9 cases. It’s mostly bankruptcy court judges opining.” Judge Jury is pleased with the progress in the San Bernardino case, recognizing that this case could not go more quickly.
While unsure whether the underlying financial issues giving rise to this case have been solved, the judge is happy to see that “there’s a much more organized financial situation now. A consultant became the city’s chief financial officer and has done a really good job. It wasn’t easy.” The judge also thinks that the press coverage of the bankruptcy case has been fair. “They get it 99% right. Once in a while they blow it, but they try to get it right.”
The Judge utilizes technology and does 50% of her reading online, including reading cases on Westlaw. However, she prints out critical cases for further review. She comments that she reads the Insolvency Law Committee’s eBulletins on a regular basis, and tracks the new opinions and decisions by the Ninth Circuit and the BAP. Judge Jury often works from home at night or on weekends. “I plan ahead to do BAP work offsite and download the key files to my iPad.”
Judge Jury also relies heavily on her law clerks. Part of the judge’s process for preparing for oral arguments on appeal is to see if she can persuade her BAP law clerk to agree with her position. “I have a great BAP law clerk, Kitty Kruis, who used to work for Judge Hargrove and has been a clerk since 1991. She’s always one step ahead of me, because she gets to read the appellate briefs before I do. We don’t always agree. If I haven’t convinced Kitty by the time of the oral argument, I have to reconsider whether my position is right or wrong.”
The judge views her present and past law clerks as part of her family. “I know where they all are in their careers.” The judge also officiated at five of her law clerks’ weddings. Judge Jury reflects that “I would be delighted if any of my law clerks became a judge. You never know. Being a judge wasn’t in my career path.”
Judge Jury is a sports enthusiast. “I’m a pre-Title IX person. My mom played tennis and I’ve always liked sports.” The judge enjoys watching NCAA women’s basketball the best. She also enjoys regularly working out and watching basketball games at the gym. The judge is an avid biker and hiker, having hiked the Grand Canyon and taken bicycle trips all over the United States.
The Judge plans to retire within the next two years, after the San Bernardino bankruptcy case concludes and she has completed her term on the BAP. Prior to being appointed to the BAP, the judge was on the Riverside Mayor’s Commission on Aging. In retirement, she plans to volunteer to help seniors, focusing on senior financial abuse issues. “I care about the senior population and want to use my skills to help.” Judge Jury does not see herself ever slowing down, even in retirement. “I like to keep busy. I like challenges.”
This article was written by Corey R. Weber (firstname.lastname@example.org), a partner at Brutzkus Gubner Rozansky Seror Weber LLP and Co-Chair of the Insolvency Law Committee (ILC) Uzzi O. Raanan, a partner at Danning, Gill, Diamond & Kollitz, LLP, Vice-Chair of the California State Bar’s Business Law Section and Past Co-Chair of the ILC (email@example.com); Leib Lerner, a partner at Alston & Bird LLP and Co-Chair of the ILC (Leib.Lerner@alston.com); and Asa S. Hami, an attorney at SulmeyerKupetz, APC and Co Vice-Chair of the ILC (firstname.lastname@example.org).
The following article is a profile of the Honorable Ernest M. Robles – the third in a series of profiles of Ninth Circuit bankruptcy judges. Judge Robles and members of the Insolvency Law Committee met in his chambers and discussed his personal and professional background, observations from the bench, and issues of interest.
Judge Robles was born in Mexico and was raised in San Francisco. As Judge Robles remarked, “in those days, San Francisco was a workingman’s town”—a town he regards as home, which explains his love for the Giants despite having chambers that overlook Dodgers stadium.
Judge Robles always wanted to be a lawyer and was interested in public service. After graduating from high school, Judge Robles attended the University of California at Berkeley—receiving a degree in political science. Following his graduation from Berkeley, Judge Robles attended the University of Michigan for law school, an experience that made him a fan of Michigan football. As he recalled, “at Michigan, we didn’t have a choice. The Big House was the place where all your friends were.”
After graduating from the University of Michigan, Judge Robles returned to the bay area to begin his career as a litigation associate with Musick Peeler & Garrett LLP. Over the following years, Judge Robles litigated a wide range of matters from maritime to insurance bad faith cases, and tried numerous cases before juries, which he commented was a “wonderful experience.” Judge Robles recalled one case in particular—a case that shaped one of his views on his role in the cases pending before him to this day. In his first jury trial, the judge kept calling Judge Robles into his chambers after each day of trial. On each occasion, the presiding judge would tell him that he had a terrible case and was going to lose, and pressed Judge Robles to explore settlement. Judge Robles, however, did not buckle under the pressure and pressed forward with litigation. Ultimately, Judge Robles obtained a jury verdict in favor of his client. After the trial concluded, the judge once again brought Judge Robles back to his chambers and told him “never let a judge tell you how to try your case”—advice Judge Robles continues to follow now that he is the judge.
After several years as a big firm litigator, Judge Robles saw an advertisement for a position with the newly-formed Office of the United States Trustee (UST). Despite minimal bankruptcy experience, Judge Robles saw the position as an opportunity to pursue his interest in public service.
Due to his extensive litigation and trial experience, the UST hired Judge Robles as an Assistant United States Trustee. Judge Robles recounted that they liked that he was quick on his feet. Over the following years, Judge Robles represented the UST in a wide array of cases, including some of the largest cases in the Northern District. Ultimately, Judge Robles was elevated to the head of the San Jose office of the UST.
During his time with the UST, Judge Robles learned a great deal that helped him develop his judicial style. As he recalled, “I saw how judges ran cases, learned how they governed the courtroom and how they read pleadings. I also got up-to-speed on bankruptcy law.” After eight years as an Assistant United States Trustee, Judge Robles began pursuing his goal of becoming a judge. “Being a judge is a calling. It fit my personality. I wanted to settle disputes and be of some help.” In 1993, Judge Robles was appointed to the U.S. Bankruptcy Court for the Central District of California, Los Angeles Division, where he has served since his appointment.
Over the past 23 years, Judge Robles has carried his desire to serve the public into his courtroom—focusing on giving every party a full and fair opportunity to present their case and “have their day in court.” Ideals of equity and fairness influence his actions daily and, more importantly, his treatment of parties and attorneys appearing in his courtroom. During this time, Judge Robles has also developed certain preferences for attorneys practicing in his courtroom.
Judge Robles places a great deal of emphasis on written pleadings. He considers a motion submitted once he receives all of the pleadings and believes it is unfair to make new arguments after a motion has been fully briefed. The judge prepares detailed tentative rulings that discuss the pleadings filed and how the court intends to rule. He believes that “it is good for everyone to have the court’s feelings out there for parties to respond to, and it is good for the reviewing court.” The judge is not often swayed by arguments at hearings, and usually only if counsel can show that the court was incorrect in the analysis of a case, or if the argument is policy driven. “The tradition of the court is written advocacy, but being able to answer questions is noticeable and terrific.”
As for technical or stylistic aspects of the pleadings, the judge looks for brevity in briefs, and often looks to the reply brief first. As Judge Robles remarked, “the reply brief boils everything down in a cogent fashion.” Judge Robles also looks for good organization in briefs and for briefs to argue the big points.
Judge Robles believes civility in the profession is very important. The judge reflected that the bankruptcy community “is a small community. You see the same faces again and again. Be civil and give a break to the other side. You’ll need a break sometime.” He continued that “there’s nothing wrong with being an aggressive advocate and being civil. Not being personal, being above board. Being an attorney is tough enough without having to worry about opposing counsel knocking you in the back.”
While he recognizes advocacy can create extraneous disputes, Judge Robles believes that interpersonal disputes or gamesmanship only serve as distractions to the issues presented. As Judge Robles remarked, “interpersonal disputes and lack of civility are just static.” Judge Robles wants to render a decision on the merits of a dispute.
Not surprisingly, this perspective carries-over into his view on motions under Rule 9011 of the Federal Rules of Bankruptcy Procedure. When discussing this point, the judge asked: “Do you really want to bring a 9011 motion if there is another way to bring the issue before the court and have the court resolve it?” Quoting Abraham Lincoln, the judge instead calls on the “better angels” of the attorneys to conduct themselves in a professional manner and, thereby, resolve such matters without court intervention. That being said, if court intervention is required to end obstreperous or contemptable conduct, Judge Robles will not hesitate to maintain civility and order in the matters pending before his court.
Judge Robles also encourages attorneys not to try to hide the ball from the judge. “If you know the answer is out there and dodge, the court loses confidence in that attorney. Attorneys have reputations and you shouldn’t do anything that would damage your reputation. Clients come and go, but once you lose your reputation, it’s hard to get it back. I put a lot of stock in attorneys being officers of the court. That’s what I expect. We’re all part of a process that’s bigger than ourselves.”
In chambers, Judge Robles embraces his affinity for technology and mentorship.
As to the former, Judge Robles has incorporated technology in his chambers in multiple respects. “I try to be paperless. I take extensive notes and then pdf them.” With paperless filings, the judge reviews and annotates orders on computers, and tries to turn around orders as quickly as possible. The tentative ruling is always part of the order. “I like the use of technology during hearings and trials. I wish we had better technology in the courtroom. Now you can refer to exhibits on digital pads. Binders and binders of exhibits are stone age stuff.” One area where the judge relies on older technology is hard copies of the case reporters. While his clerks often use Westlaw, the judge prefers the hard copy books.
As to the latter, Judge Robles views his clerkship program as an important aspect of the court and has a great deal of respect for the role of a law clerk in his chambers. The judge has two law clerks, one term clerk and one career clerk. “It is one of the most difficult jobs out of law school. It is a steep learning curve.” He notes that “I’ve never had a clerk that was not up to the challenge. Some clerks feel the stress more and the ramping up time differs.” Once the judge gets a comfort level on his clerks’ abilities, he and his clerks work closely together. “It’s like MASH. Radar and the Colonel finished each other’s thoughts.”
As he spoke of his current and former clerks, it became clear that Judge Robles cares deeply about his law clerks, noting that “the greatest feeling of accomplishment is my relationship with my law clerks. How they impacted me and how I impacted them. Also how they now give guidance to people working for them.”
Judge Robles has five children and has been married to his wife for more than 30 years. In speaking of his family, Judge Robles recalled challenges resolving disputes outside the courtroom, including his youngest son’s affinity for video games when it is at odds with his need to study and practice the cello. As in the courtroom, Judge Robles received arguments on the benefit of the Minecraft video game, which his son contended is educational because it is about “economics…supply and demand.” Although he respected the argument, Judge Robles was not persuaded and his son lost the motion for additional video game time. “You have to put limits,” Judge Robles remarked.
In addition to his family, Judge Robles has a love for music—an appreciation that began as a child and grew as a performer in his younger years. Judge Robles commented that “performing gives you a different perspective on listening to music.” As a former performer, it is no surprise that he enjoys live performances and is a regular attendee of the Los Angeles Philharmonic. Judge Robles also noted that sometimes he will fly somewhere just to see a concert. As Judge Robles put it: “It’s different live. Recorded music is too perfect and antiseptic. If you go to a performance, you see the interactions between the performers and the interaction with the audience.”
This article was written by Corey R. Weber (email@example.com), a partner at Brutzkus Gubner Rozansky Seror Weber LLP and Co-Chair of the Insolvency Law Committee, and Michael Delaney (firstname.lastname@example.org), an attorney at BakerHostetler LLP and member of the Insolvency Law Committee.
Asa S. Hami
SulmeyerKupetz, A Professional Corporation
United States Bankruptcy Judge Martin R. Barash was sworn in on March 26, 2015, and assigned to serve in the Woodland Hills branch of the Central District of California. He feels as though he won the lottery, both in terms of his new judicial role and the location of his chambers. Indeed, Judge Barash may be the first Woodland Hills-based judge to have grown up locally.
Judge Barash attended Taft High School in Woodland Hills, received his undergraduate degree at Princeton University, and law degree at the UCLA School of Law. Following law school, he worked at two well-respected Los Angeles bankruptcy boutique firms, Stutman, Treister & Glatt P.C. and Klee, Tuchin, Bogdanoff & Stern, LLP. He also taught for a year at California State University Northridge.
The judge sees his new role as an opportunity to serve the community. His parents worked as fundraisers for various Jewish community service organizations. During junior high and high school, Judge Barash got involved with Junior State of America, a national organization formed in 1934 with the mission of “educating and preparing high school students for life-long involvement and responsible leadership in a democratic society.” In his senior year of high school, Judge Barash was elected governor of the Southern California Junior State, and has remained involved with the organization ever since. He is the Immediate Past President of the Junior Statesmen Foundation.
He has served on various professional organization boards, including the LA Bankruptcy Forum and the American Bankruptcy Institute, among others, and volunteered at the debtor Reaffirmation Clinic run by Public Counsel.
Judge Barash is a busy father of three children ages 13, 11 and 8, and proudly points out that “being a parent helped me prepare to be a judge. It helped me learn patience.” In his free time, he is an amateur photographer, mostly documenting his children and travels. He also loves to cook and garden.
Judge Barash appears to have made an easy transition from private practice to the bench. His wife tells him that he is more calm now than when he was in private practice. He agrees, noting that, “both of the law firms I worked for had an intellectual rigor and expectation that the work had to be excellent all the time,” and that they were “intense environments.” He adds, as a judge, “I no longer have to worry about where the next client is coming from, or pleasing a demanding client. It is less stressful.”
Judge Barash agrees that being a judge “is a little isolating”. However, while “I gave up the camaraderie of my former partners and associates, I gained wonderful new colleagues.” The judge often walks down the hall to talk with the other judges. He is effusive when talking about his fellow jurists at the Woodland Hills courthouse, whom he clearly admires greatly.
The judge reveals that he likes to hone his rulings by talking through issues, and is in his law clerks’ offices several times a day to discuss various cases. It’s an ongoing dialogue because he both wants his law clerks to learn from each case and to have them challenge and identify any holes in his reasoning. “I learn something new every day,” he professes. Despite his interest in exploring unusual legal issues, he also tries to be practical in how he approaches his cases.
Judge Barash tries to create an environment where his two law clerks, Enid M. Colson and Ahree Song, feel comfortable expressing their views freely. He has one of his law clerks observe all court hearings, take notes, keep track of rulings and make observations. “My clerks take the laboring oars,” he says.
Judge Barash states that he has a reasonably sized docket, but does not yet have a point of reference. Although some rulings are taken under submission, he tries to announce his rulings at the hearings, commenting, “I don’t want to be the guy who falls behind.”
Although the judge knows and has worked with many Los Angeles bankruptcy attorneys, not many of them have appeared before him yet. For attorneys who do, he focuses on the facts and the law and tries not to be influenced by what he knows about their personalities and styles. Judge Barash tries to keep biases in mind, commenting that “it is the unexamined bias that is dangerous.”
There are challenges that he did not foresee. For example, “what does a judge do when an attorney misses an argument or doesn’t do as good a job as you might do? Do you punish the lawyer’s client or find a way to get to justice?” Judge Barash’s style is to sort through and test the arguments to get to the right answer.
When asked whether he models his judicial style on a specific judge, Judge Barash reveals that he looks to many judges whom he admires. He singles out the Honorable William J. Lasarow, a former bankruptcy judge in the Central District of California, stating that, “he exemplified open-mindedness, had an innate sense of getting parties to a place that is reasonable, was gentlemanly, and I thought the world of him.”
The judge has not yet filled out the Judicial Practices Survey, but advises attorneys to “be more familiar with the local rules and what they require, the sometimes overlooked need for evidence, and paying attention to service issues.” He emphasizes that he, “takes service issues very seriously, especially where there is no opposition filed. There must be due process.” Judge Barash reviewed most of the courtroom procedures followed by other judges in the Central District and took the parts that he thought would work best in his courtroom. “I try to improve customer service” through the courtroom procedures.
The judge does not always issue tentative rulings in advance of hearings, and he sometimes states the tentative only after taking the bench. He posts a tentative when the issues are clear or when the answer has crystalized in his mind before the hearing. Judge Barash likes having a dialogue with attorneys in his courtroom.
Although he often sticks to his tentative rulings, he sees oral argument as a valuable part of the process, and has been swayed by oral arguments on occasion. Such courtroom dialogue often tests the judge’s analysis of the issues, often confirming his pre-hearing analysis.
One procedure where Judge Barash may diverge from the majority of Central District bankruptcy judges is the use of direct testimony by declaration, as opposed to live testimony. He notes that “the default rule is direct testimony by declaration, but I have seen in my practice the value of live testimony. Witness credibility is easier to assess in person.” The judge comments that “declarations streamline what we do but there are also virtues to live testimony.”
On settlement, the judge reflects that “the fastest way to settlement discussions is to set a trial date. Part of my job is to encourage settlement.”
Judge Barash is cognizant of the costs associated with the bankruptcy process, and the barriers these costs can pose to gaining access to justice. It is clear that the judge views his role as part of a larger landscape of improving government through dedicated service. “People these days don’t feel like government listens to them,” he says. “I feel like the one thing I can do is listen to people with respect and have them know that they’ve been heard. The strength of institutions is directly related to the esteem in which people hold them.” He concludes by stating, “this is the world’s greatest job. I can really make a difference one person at a time. It’s an incredible gift, privilege and honor.”
This e-Bulletin was written by Corey R. Weber, a partner at Brutzkus Gubner Rozansky Seror Weber LLP in Woodland Hills, California and Co-Chair of the ILC (email@example.com), Uzzi O. Raanan, partner at Danning, Gill, Diamond & Kollitz, LLP in Los Angeles, California, Vice Chair of the California State Bar’s Business Law Section and past Co-Chair of the ILC (firstname.lastname@example.org), and Asa S. Hami, an attorney at SulmeyerKupetz, A Professional Corporation in Los Angeles, California and Co-Vice Chair of the ILC (email@example.com).
The following is the first in a new series of profiles of 9th Circuit bankruptcy judges. Judge Neil W. Bason and members of the Insolvency Law Committee met in his chambers and discussed his personal and professional background, transition to the bench and other issues of interest.
Judge Bason was appointed to the bench in the Central District of California, Los Angeles Division, in October 2011. Prior to his appointment, he was special counsel at Duane Morris LLP and at Howard Rice Nemerovski Canady Falk & Rabkin, P.C., and served as law clerk to the Honorable Dennis Montali, United States Bankruptcy Judge in the Northern District of California and Chief Judge of the Bankruptcy Appellate Panel of the Ninth Circuit.
Judge Bason grew up in Washington, D.C., and spent a year during college living in London. His chambers reflect his hometown and travels, with pictures and paintings of the Jefferson Memorial, London and a historic mill.
The Jefferson Memorial is one of Judge Bason’s favorite places to visit, and he is still influenced by a childhood visit to Monticello, Thomas Jefferson’s Virginia home. Judge Bason enjoys studying history, and particularly about some of the men and women who had the greatest influences on the development of this nation. Reflecting that Thomas Jefferson designed an innovative clock and George Washington built a circular barn to exercise cows, Judge Bason notes that, “Jefferson and Washington were enlightenment men with character. They were trying to push the envelope, and I admire that.” The Judge is currently reading Abraham Lincoln’s complete works on his Kindle.
Prior to taking the bench, Judge Bason was a dedicated member of the ILC, serving as Co-Vice Chair and, briefly, Co-Chair. His term as ILC Co-Chair was cut short when he was appointed to the bench. One of his favorite activities as a practitioner was brainstorming legal issues with colleagues and interacting with smart and experienced attorneys. In fact, he is an unabashed fan of the ILC and believes that the ILC is a great place for insolvency practitioners to share their ideas, as he found members of the committee to be “collaborative, interactive, and of high character.” He appreciated the energy and enthusiasm exhibited by ILC members.
Judge Bason believes that he was “incredibly lucky” to have a great variety of experiences in private practice. Looking back at his time as a lawyer, he points to a couple of lessons and tips for young and experienced attorneys: (1) the importance of accepting responsibility early in one’s career, learning as much as possible, and taking calculated chances, and ultimately learning from inevitable mistakes; and (2) the importance of having a balanced life, personally and professionally. He did not always follow his own advice – for example, he wishes that he had taken more chances early on – but looking back he believes he learned the most when he made himself do that. Judge Bason is very thankful to Judge Montali, who mentored him and gave him exposure to a wide variety of issues arising in bankruptcy law.
While the transition from Bar to bench is never easy, Judge Bason’s appointment also meant a move from San Francisco to Los Angeles, where his social and professional networks were much more limited. Judge Bason, though, found the Central District bankruptcy judges to be very collegial and welcoming, making the transition easier than he had imagined. Members of the Bar may be surprised to know that bankruptcy judges often get together for activities like architectural walking tours around Downtown, hikes in local hills and mountains, and performances at the Hollywood Bowl.
However, being a judge can also be isolating. Judge Bason noted that, “whereas in private practice after a great argument in court you can take your opposing counsel out to lunch, you cannot do the same as a judge.”
Speaking of not being isolated, Judge Bason recently participated in the traditional CBF "game show" hosted by Chief Judge Sheri Bluebond. This year the program was called "The Bankruptcy Bachelor," and Judge Bason is very grateful to Judge Bluebond and the other participants for their sense of humor and being exceptionally good sports.
Judge Bason’s interest in technology has clearly influenced how he approaches his role as a judge. While many law firms are slowly transitioning to a paperless office, Judge Bason has already implemented virtually paperless chambers. He logs into the Court’s computer system from home, and has access to the pleadings online. He does not review hard copies unless the pleadings have not yet made it to the docket, such as with somepro separties, or if there are a lot of tabs and exhibits. For pleadings, he makes PDF copies and writes notes electronically in Adobe Acrobat, or types notes in a separate document referring to key parts of the pleadings. In fact, Judge Bason notes that were it not for his law clerks’ preferences, he would have done away with the paper courtesy copy requirement in his courtroom.
The Judge tries to give detailed tentative rulings prior to oral arguments, and expects counsel to address the relevant issues he identified. He does not try to hide the ball on the issues that he wants counsel to address. Although he likes to engage attorneys at oral argument, and does so more than the average Bankruptcy Judge, sometimes he feels compelled to hold back and let the attorneys raise the issues that they believe are important. Despite his active discussion with counsel, he fairly often refrains from raising additional issues that he has discussed with his law clerks because no party has raised them.
As a result of his experience in private practice, the Judge tries to move cases along in a timely manner. He frowns on needless procedural delays and has recently cracked down on some attorneys who consistently file late or frivolous pleadings. If an issue needs time to develop, then he will let that happen, but he makes every effort not to allow a case to linger needlessly. For example, in chapter13 cases he sets confirmation hearings early and in small chapter 11 cases he usually requires the use of forms and sets a combined hearing on final approval of a disclosure statement and confirmation of a plan. He notes, however, that “The Bankruptcy Code gets thicker and thicker and there are now procedural issues such as Stern v. Marshall.” The procedural issues add to the time and money involved in bankruptcy cases, which is especially burdensome for individual parties.
Judge Bason understands life as a practitioner, including the importance of fee applications, and tries to remember that he does not see what transpires outside of the courtroom. He observed that what he sees as a judge may not be the whole picture. “The end result may look simple, but may not be, and I try to be respectful of that.” He comments that “someone can be a complete jerk during discovery and then act differently before the judge.”
He also understands that “reputation is everything.” It is especially critical in a small professional community like the Bankruptcy Bar. As a result, unlike among general litigators, one finds that in the Bankruptcy Bar there is generally more civility and a need to choose your battles. The Judge notes that an attorney who is not honest with the Court or who makes clearly frivolous arguments, risks having his pleadings read with extra scrutiny by judges who no longer trust that attorney’s factual or legal representations. He is quick to clarify, though, that in his experience both on and off the bench judges go out of their way to avoid bias in reviewing pleadings, and if anything bend over backwards to be careful when dealing with an attorney who has lost the Court's trust and always consider all the arguments presented by all sides to a dispute.
Judge Bason has nothing but praise for his newly-adopted hometown. He is an avid bicycle rider and enjoys the city’s cultural offerings. He regularly rides his bike to work, as well as along scenic bike paths and Griffith Park. He has even ridden his bike from Los Angeles to San Diego on several occasions, an 11- to 14-hour ride.
In addition to biking, Judge Bason enjoys Los Angeles’ cultural scene, including the large number of quality museums such as the Peterson, LACMA, Norton Simon, the Getty, and others. If he could split his time between his favorite cities, he would live in Los Angeles, San Francisco, London and Paris.
Judge Bason believes that part of his responsibility as a judge is to give back by taking in externs and training them to become good bankruptcy lawyers. “You are fortunate if the externs give back more than they receive, but that misses the point—it is a public service to train them.”
In an attempt to bring innovation and cost savings to the bankruptcy process, Judge Bason spearheaded a judge’s group to revise the model plan and disclosure statement for smaller chapter 11 cases. Judge Bason, with the help of financial advisor Brad Smith, programmed an automated spreadsheet that attempts to simplify the process for creating a plan and disclosure statement. Once basic information is filled in, the spreadsheet program automatically populates other required fields, including various necessary calculations. He calls it a “labor of love” that he is in the process of revising and then would like to take on the road and introduce to bankruptcy practitioners and courts alike. Judge Bason believes that for some over-sized chapter 13 cases that are required to go into chapter 11, a chapter 11 is too expensive and the spreadsheet may help reduce costs. The spreadsheet may also help small business debtors with their chapter 11 cases. Judge Bason’s spreadsheet is already available on the Central District of California Bankruptcy Court’s website at: http://www.cacb.uscourts.gov/forms/chapter-11-plan. As noted by the Judge, not all judges permit the use of the spreadsheet, and you should check each judge’s local rules.
Judge Bason is very mindful of the current challenging environment for bankruptcy practitioners. He doubts that there is going to be a change anytime soon with the reality that large cases are more often than not filed in Delaware and New York, instead of California. “It’s become something people are used to. Not many large cases will be filed here, and that’s unfortunate.” The Judge also recognizes that we’re living in unusual economic times, where we’re experiencing a “non-recovery recovery, with things just puttering along.” This is “a tough spot for practitioners.”
This article was written by Corey R. Weber, a partner at Ezra Brutzkus Gubner LLP and Co-Vice Chair of the ILC, Uzzi O. Raanan, a partner at Danning, Gill, Diamond & Kollitz, LLP, a past ILC Co-Chair and a member of the Executive Committee of the California State Bar’s Business Law Section, and Asa S. Hami, an attorney at SulmeyerKupetz, A Professional Corporation, and Secretary of the ILC.