It’s not every day that I go to bat, defending the honor of other attorneys. But in recent weeks, I’ve received a few complaints from clients who don’t understand why other lawyers that they have talked to won’t take certain cases, whether it’s a personal injury or malpractice claim, or some legal theory in bankruptcy law that they want to push.
While it is true that we, as attorneys, have a responsibility to our clients to represent their interests and be fierce advocates for their positions, it does not mean that we have to test out every theory that one could possibly dream up. There are several reasons why we might pass on litigating certain issues. One of them, frankly, is business reasons. It costs us time and money to litigate issues, and we don’t always have the resources at our disposal to invest in a case that we are reasonably certain is a loss right from the get-go.
But there are also less selfish, altruistic reasons why we might be picky about which cases we litigate. I’ll give you a great example. Recently, I had a case come across my desk of illegal discrimination when it came to bankruptcy and employment. As far as I was concerned, it was a clear-cut case of discrimination. I collected as many of the relevant facts as I could, then set to work on researching the case law and the standards that I would have to prove to win the case. When I dug around in the case law, I discovered two things. First, that there was very little case law on the subject, and even less that was binding on my district. Second, that the case law that did exist imposed Draconian standards to prove the discrimination and obtain any sort of compensation for it.
Although I felt strongly about the case and hoped I could get a judge to reverse the case law, I had to pass on litigating this particular case because the fact scenario was not ideal. You see, even if a judge personally feels one way about a case, in a common law system like ours, judges will resist deviating from established case law to the extent possible, and will hang their hat on anything. That’s why when you’re litigating novel or controversial issues, attorneys ideally like to look for “the perfect case” to use as a test pilot. What happens if I use a less-than-perfect case as a test pilot? Not only would my client have a higher chance of losing his case, but remember what I said earlier about there being next to no case law on the subject that would be binding in my district? If I pursued the case, then I would have created binding case law. And in less than perfect conditions, the case law that I would have established would probably not help clients who follow in the future with similar problems.
And while I’ve brought up the subject if precedence in my district… For those of you who like to do your own legal research, bear in mind that in bankruptcy court, there are only three courts whose decisions bind your judges. If you find case law from a different court, that decision, though persuasive, is not binding. Bear that in mind before you run to your lawyer excited over something you find on the Internet that you think helps your case. I promise you, we know how to look up case law, too, and we know which cases are binding and which ones are persuasive. For the record, cases that bind the judges in the Bankruptcy Court for the Eastern District of Wisconsin come from (1) the District Court for the Eastern District of Wisconsin, (2) the 7th Circuit Court of Appeals, and (3) the U.S. Supreme Court. Also remember that bankruptcy operates in the federal court system, not the state court system. Decisions from Wisconsin state courts do not bind our judges, either.
And now for something different. Down in Milwaukee, there is a Pro Se Help Desk for debtors who cannot afford attorneys, headed up by Chapter 7 trustee Andrew Herbach. The help desk is staffed by attorneys, working pro bono who assist individuals in completing their schedules (however, they cannot offer legal advice in this setting). I am pleased to announce that me and a few of my colleagues are now in discussions to bring a similar program to the Green Bay area. Services would likely be restricted to individuals who are at or near the federal poverty guidelines. Likely, the budget management seminar that I developed (which has been on hiatus for a little while) would be integrated into that program. Although we would be offering the Pro Se Help Desk to help those less fortunate, we do have to remind you that it is still a good idea to hire an attorney if you intend to file for bankruptcy. Although many of the forms are relatively simple to navigate, it is important to have legal representation, at minimum for planning your exemptions (Schedule C) and preparing the Means Test (Form B22A).