The following is a profile of the Honorable Scott C. Clarkson – the tenth in a series of profiles of Ninth Circuit bankruptcy judges. Judge Clarkson and members of the Insolvency Law Committee and Business Law Section Executive Committee met and discussed his personal and professional background, observations from the bench, and issues of interest.
Personal and Professional Background
Judge Clarkson is an avid boater and photographer with eclectic interests. He can speak as readily and enthusiastically about the nuances of the Bankruptcy Code as he can about the musical distinctions between the Beatles, Frank Zappa and classical composer Edgard Varèse. But his latest efforts have resulted with his lecture and visual presentation, given previously in New York City, San Francisco, Los Angeles, Orange County, Portland, Oregon (at the recent Ninth Circuit Conference of Chief Bankruptcy Judges) on the life, work and 1656 bankruptcy proceedings of the famed Dutch artist Rembrandt van Rijn (1606 – 1669).
Judge Clarkson was raised outside St. Louis, Missouri. His father, Stu Clarkson, was a professional football player for the Chicago Bears, but passed when Judge Clarkson was very young. His stepfather was an aerospace engineer who worked on the navigational systems for the Gemini and Apollo space programs. His mother held a Ph.D. in microbiology and was a teacher who was actively involved in Missouri politics, helped formulate the beginnings of the Missouri National Education Association and was an active participant in the creation of the collective bargaining process for teachers in that state. Elective politics played an important role in Judge Clarkson’s early life, and he still remembers, at age fourteen, stuffing envelopes with campaign materials for Vice President Hubert Humphrey as presidential candidate in 1968.
In January, 1977, Judge Clarkson became a legislative assistant for a new Congressman in Washington, D.C. Soon after starting in his position, his boss was appointed to the House of Representatives’ Judiciary Committee assigned to drafting the new Bankruptcy Code of 1978. Richard Levin and Ken Klee, lawyers/staffers for the House Judiciary Committee, invited Judge Clarkson to join their efforts, and for the next two years, he was immersed in the transformation of the old 40-year old statute into the modern Bankruptcy Code we have today.
Based on his congressional background in drafting the Bankruptcy Code, and while he was a second year law student in 1980, he was asked to become a Chapter 7 panel trustee for the Districts of Washington, D.C. and Eastern Virginia. On a more important note, he started dating his wife, Cheryl, who was a former Capitol Hill staffer and at the time a Washington, D.C. representative for the University of California system.
Returning to Missouri for a brief stint, Judge Clarkson clerked for the Honorable William L. Hungate, a district court judge in the Eastern District of Missouri, and they became life-long friends. Judge Clarkson’s bench gavel was gifted to him by Judge Hungate’s widow in 2007. He loves the inscription, “To the Hon. W. Hungate for his life-long service, by the Agricultural Bank of Missouri.” He likes to say that sometimes he feels as if he is channeling Judge Hungate while on the bench, for whom he credits for inspiration in thinking about legal issues and the judicial system in general. (Hungate served on the House Judiciary Committee in Congress during the Nixon impeachment process, and as District Judge during Judge Clarkson’s term, oversaw the school desegregation case in St. Louis.)
After returning to Washington, D.C. in the early 1980’s, Judge Clarkson briefly turned to environmental regulatory law, but came back to bankruptcy law as he started (involuntarily, he claims) fielding bankruptcy questions from Capitol Hill during the 1983-84 “Northern Pipeline” jurisdictional issue, as well as other issues arising through proposed amendments to the Bankruptcy Code. He and his wife moved to Los Angeles and he initially joined a prominent bankruptcy firm in Century City. After their first son was born, he started his own law firm in Torrance, California (they lived in Rancho Palos Verdes at the time), which over a twenty year period had between seven to nine bankruptcy, commercial and trial lawyers at any given time. Judge Clarkson was the managing attorney at the firm, and remains very proud of establishing a “life-style” firm, encouraging the attorneys to not “spend their days and nights, and certainly not weekends” in the office.
Although the firm handled commercial transactional and civil litigation matters, he largely focused on Chapter 11 reorganization and litigation efforts. Judge Clarkson was also active in the LA bar community, serving as a member of the Los Angeles County Bar Association’s Bankruptcy Committee and Commercial Law and Bankruptcy Section, ultimately serving as chair of both of those groups. He credits his opportunity to serve the bar community during those years, especially as an active “programs committee member,” as one of the defining reasons for his selection to the Federal Bankruptcy Bench.
Transition to the Bench
In early 2010, after practicing bankruptcy law for approximately 20 years in the Los Angeles area, at the encouragement of the then Chief Bankruptcy Judge of the Central District, Judge Clarkson applied for appointment to a recent vacancy to the bench. On January 20, 2011, Judge Clarkson was selected by the Ninth Circuit Court of Appeals and began his service in the Riverside and Santa Ana divisions of the Central District of California.
Role of the Judge’s Law Clerks
Judge Clarkson has made continuing note of his appreciation and recognition of his excellent staff, especially his permanent law clerk, Eve Marsella, Esq., a graduate of Los Angeles’ Loyola Law School, who, not by coincidence, was his law partner for seventeen years. “She is an expert in both consumer bankruptcy and business reorganization in her own right.” His other “temporary” law clerks (bankruptcy judges are permitted two law clerks) have diverged from the traditional “one year and out” formula of many judges, and have served multiple years in chambers. They may serve up to four years before they depart the chambers. Judge Clarkson relates that they have all been selected because of their prior bankruptcy law experience and excellent legal analytical abilities. He believes that both he, and the legal community appearing before his court, have been very fortunate to have such a tremendous staff in chambers. “We constantly are trying to understand various perspectives and motivations. The decisions and rulings are solely mine; however, it is a remarkable opportunity to have the privilege and benefit of their own insights, appreciations and experiences in developing my decisions and opinions.”
Observations from the Bench
Judge Clarkson believes that he appreciates, to great extent, the difficulties of practicing law. His goal has always been to make practitioners’ lives a little easier, but not at the cost of harming opposing parties or the system. “A few practitioners don’t necessarily appreciate that our local rules and procedures are a two-way street, and that when the Court does not enforce those rules when appropriate, it allows opposing counsels to pick and choose the ones they will follow. This makes the practice before the court highly unpredictable, more expensive to clients, and more difficult in general for lawyers.” He continued, “They shouldn’t take it personally when a substantial procedural infirmity gets in the way of achieving their initial goals. The next day, they would recognize that someone else has tried to game the system by not following procedures, to their own detriment.”
When it comes to advice for the courtroom, he says that the standard, tried and true, recommendations are the best. In oral argument, be clear and concise, try not to significantly repeat arguments already in the pleadings (after determining whether the Court has reviewed the papers, which in his Court is an almost given), and try not to “rip defeat from the jaws of victory.”
When there is opposition to the relief sought, point out the weaknesses in the opposition, be civil, and do not resort to ad hominem attacks against the opposing attorney or client. In his opinion, the best pleadings are well organized and use short, declarative sentences to present a position. Adverbs and adjectives only designed to make the prose more dramatic should be used sparingly, as they cause redundancy and, he says, are uninspiring. Initial written arguments, in his opinion, should anticipate and address opposing arguments.
When contemplating decisions, Judge Clarkson likes to think about the big picture and how the relief sought fits into the totality of the bankruptcy case, rather than viewing each motion as its own separate and distinctive piece. “More often than I like to see, efforts are made by counsels without the thought of what is next,” he confided. Judge Clarkson believes in, and posts, significant tentative decisions. He considers tentative decisions as one of the best devices available to develop the scope and understanding of motions before him, and they tend to ensure effective and efficient motion practice. He says that he has never found a lawyer with significant tentative decision experience, decry them.
When it comes to deciding whether to publish a written decision, Judge Clarkson thinks about whether the decision contains something significantly worth elevating and may help the understanding of the law or process. If he believes the decision will add to the legal community or process as a whole, he will consider publishing the decision.
Judge Clarkson appreciates telephonic and video (from Riverside) appearances and believes they give parties a cost-effective means of appearing in cases. However, with respect to telephonic appearances, he also understands that without actually seeing visual cues from a judge, it is sometimes hard for an attorney to know that they have made their point and to move on to another important topic. He recognizes that he needs to be patient (and professes that this is one of his hardest tasks and is truly a work-in-progress) or say something to help assure the attorney that he has fully heard and appreciates their position.
When Judge Clarkson is not on the bench or in chambers, he can usually be found cruising up and down the California coast on his boat, a 42’ Grand Banks trawler. As an established documentary photographer, he has documented events throughout the United States, Southeast and Central Asia and South America for over 30 years. Some of his work may be seen at www.scottclarksonphotography.com. His book of photographs, “Windows to Vietnam – A Journey in Pictures & Verse”, was published in 2007 and is now in its second edition. The book was designated as “Editors Choice” by the United States Military Academy (West Point) Association of Graduates Alumni Magazine in 2008. Judge Clarkson has traveled to and photographed during the Afghanistan conflict, Pakistan and Kashmir during 2008 – 2009, and, in 2014, in Jordan and Israel, including the West Bank and Gaza. He has also photographed and written of events in and about several Syrian refugee camps. He uses a Leica M7 and Hasselblad 500 C/M for film, and Leica M8 and M9 for digital images.
In an area of unusual esoterica, Judge Clarkson may be the leading American expert on the bankruptcy background and proceedings of the famed Dutch Artist Rembrandt van Rijn (1606 -1669), occurring in The Dutch Republic in 1656. Initially sponsored by the Denver Art Museum, Judge Clarkson has delivered his art history lecture entitled “Rembrandt – the Bankrupt Printmaker” to various art and law audiences in Denver, CO., San Francisco, New York City, Portland, OR, Orange County, CA, Los Angeles and is scheduled for Cincinnati, OH, later this year.
This article was written by Christopher D. Hughes (email@example.com), a partner at Nossaman LLP and member of the Insolvency Law Committee (ILC), Misty Perry Isaacson (firstname.lastname@example.org), a partner at Pagter and Perry Isaacson and member of the ILC, and Corey R. Weber (email@example.com), a partner at Brutzkus Gubner Rozansky Seror Weber LLP, Vice Chair and a member of the Executive Committee of the California Lawyers Association Business Law Section and past Co-Chair of the ILC.