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Thursday, January 24, 2008

Bad Judges and Cockroaches

It might be an urban legend, but I've always heard a disturbing tale about cockroaches. If you see one, the story goes, you can rest assured that others are nearby.

Do cockroaches like to travel in armies? Do they reproduce at a rate that would make rabbits jealous? Whatever the thought is behind this little "truism," I've always had a hair-raising thought upon seeing a single cockroach: "Oh my God, there's an army of 'em about to come from behind that wall! Call Orkin, stat!"

This thought came to me recently as I was thinking about bad judges. (If you don't think of cockroaches and bad judges in the same sentence, then you probably haven't spent much time around bad judges.)

Bad judges seem to share a trait (actually several traits) with cockroaches. If you see one bad judge, you are almost sure to see several others.

Sure has happened with me. Started with Shelby County District Judge Ron Jackson, who "oversaw" a case where I was victim of a minor crime. That led to circuit judges J. Michael Joiner and G. Dan Reeves, and then the "high and mighty" (and corrupt) GOPers on Alabama's appellate courts.

My latest encounter with a judge comes courtesy of Allwin Horn, a Republican (natch) from Jefferson County. Horn is hearing a pending legal-malpractice claim I have against my second attorney, a solo practitioner named Richard Poff.

(My first attorney was Jesse P. Evans III, who at the time was with the large Birmingham firm Adams & Reese/Lange Simpson. Evans was a partner in the firm and his associate, Michael Odom, did most of the work on my case. Evans and Odom have since bolted for another Birmingham firm, Haskell Slaughter. You will be hearing much more about Evans, Odom, and Poff--and their actions and inactions on my case--in the near future.)

Is Horn another bad judge? I'm seeing overwhelming signs that the answer to that question is yes.

And why do I say that? Well, my legal-malpractice claim has been complicated by the fact that Richard Poff, subsequent to "representing" me and being fired by me, filed for bankruptcy. (He also went through what appears to have been a rather nasty divorce. Much more about Poff's bankruptcy and divorce coming down the road. Oh and by the way, Jesse Evans was sued for divorce while he was representing me. That was dismissed, but he was sued again a year or two later--and that one went through. Much more on that coming up, too. I seem to have a "positive" effect on my lawyers' marriages--and their financial status. Only fair since they certainly have had a "positive" impact on my financial status.)

Now, here is where I have a problem with Horn. Poff filed a motion to dismiss my lawsuit, stating that it should be discharged along with his other debts in bankruptcy court. Poff claims this even though my lawsuit was filed after his bankruptcy petition, and he did not list me as a creditor on the petition.

Poff, however, claims that my lawsuit against him "accrued" prior to his May 19, 2005, bankruptcy filing. Horn seems to be going along with this and has ruled that my lawsuit is a "contingency claim." Therefore, he states, I must seek leave in bankruptcy court in order to proceed with my litigation in state court. Horn says this even though Poff's bankruptcy case was completed some two years ago, and his debts were discharged (prior to the change in federal law making it more difficult to file for bankruptcy; pretty slick on Poff's part.)

Now, I don't claim to be an expert on bankruptcy law. It's a complex area of the law, and many lawyers specialize only in that. But I do have some gray matter between my ears, and I fail to see the point in me going off on a glorified "snipe hunt" at the bankruptcy court. (To which, I'm sure the bankruptcy folks will say, "What the hell are you doing here?)

You see, Poff is saying that I am a "creditor" and my lawsuit against him is a "claim" for bankruptcy purposes. Horn seems to be buying that.

But I fail to see how that is correct. The definition of a "claim" under bankruptcy law is pretty simple and can be found in Johnson v. Home State Bank, 501 U.S. 78 (1991). That case states that a claim in a bankruptcy case is a "right to payment." And the case goes on: "a right to payment [means] nothing more nor less than an enforceable obligation."

Well, I have no right to payment from Richard Poff. I have no enforceable obligation. He doesn't owe me a dime. (Actually, he should owe me quite a few dimes. But under the law, at this moment, he doesn't owe me a dime.) So how is my unresolved lawsuit for professional malpractice, which hasn't even gotten off the ground, considered a "claim?"

I don't think it is, and I think Judge Allwin Horn is wrong for apparently stating that it is. But that's not what makes me lean toward putting Horn in the pantheon with other bad judges I've encountered. That judgment is based on something else. Details on that are coming.

Oh, and by the way, Richard Poff has a most interesting history in the Birmingham legal community. You will want to stay tuned for details on that.

4 comments:

Anonymous said...

Judge Horn is right on this one. A lawsuit is a "claim" even before reduced to judgment. the state court suit should be stayed, pending re-opening of the bankrutpcy case to amend the schedules.

I hope you timely filed a notice of claim in bankruptcy court, or you are in a world of trouble. if the defendant filed what is called a "suggestion of bankrutpcy" as I recall, you have a limited amount of time to then go back and seek to reopen or, if the case is not closed, to add your unsecured claim to the previously filed schedules.

You had better research this very carefully and watch your dates, because bankrutpcy court is a different animal, and the worst part is, failure to file soemthing in bankrutpcy court may result in the dismissal of your state court case.

Anonymous said...

Why do you have so many legal problems?

legalschnauzer said...

Interesting comment.

Can you cite case law that states that a professional-malpractice lawsuit, even before reduced to judgment, is a claim? I've not been able to find such a case, and evidently Judge Horn can't either because he hasn't cited one.

That's one of my biggest beefs with judges. If they would simply cite the case law, statute, procedural rule, or whatever that they are basing their ruling on, it sure would help. Instead they often just write "denied" on a motion, and the party has no idea what this is based on. Procedural rules should be changed so that judges can't get away with this.

They should have to show that their rulings are based on something. Too often, it looks like they are pulling things out of thin air.

As you say, bankruptcy court is a different animal. I suspect many lawyers don't understand it, so it can be particularly difficult for lay people like me.

I have at least two more posts coming on this subject, based on additional research I've conducted. Feel free to weigh in.

Anonymous said...

this is probably way too late to make a diference (found your site via folo). bankruptcy has no affect on malpractice insurance - ie, even if the lawyer is discharged personally, his carier is still on the hook. you need to move (if you still have time)to lift the stay to the extent of insurance