It pained me to write those words because Vance is a Democrat, who was appointed by former Alabama Governor Don Siegelman. And as regular readers know, I have been one of the louder voices in the blogosphere stating that Siegelman was the victim of a political and unlawful prosecution.
Ironically, Vance is in the news these days because of an electronic-bingo case in Walker County. He is scheduled to conduct a hearing on the matter today.
Vance isn't fit to preside over a corner lemonade stand, much less a court case of any substance.
To state that a public official is corrupt is serious business--and I don't use such terms lightly. It's particularly difficult when that official is a Democrat who, theoretically at least, should share my generally progressive views.
Robert Vance Jr., unfortunately, is a phony. Not so much because he acts in decidedly unprogressive ways. But mainly because he acts in unlawful ways, and as a judge, he took an oath to uphold the law.
I wrote about Vance a few weeks back because his wife, Joyce White Vance, was Barack Obama's choice as the new U.S. attorney for the Northern District of Alabama. I stated that Joyce White Vance undoubtedly will be an improvement on the abominable Alice Martin, who served under George W. Bush. But I also voiced my concerns that Joyce Vance has ties to the Birmingham legal establishment and noted that her husband is a judge--a bad one.
Let me explain one of the basic ground rules we use here at Legal Schnauzer. We operate under the assumption that if a judge acts unlawfully in one case, he probably has acted unlawfully in others. That's why I paint Robert Vance Jr. with a broad brush. He definitely cheated me, and I find it hard to believe he hasn't cheated other litigants.
How did Vance Jr. cheat me? Let me explain:
It involved a legal malpractice claim I filed against Jesse P. Evans III and Michael B. Odom, the lawyers who originally defended me in the lawsuit filed by my troublesome Shelby County neighbor, Mike McGarity.
At the time, Evans and Odom were with the Birmingham firm of Adams & Reese/Lange Simpson. They since have moved to Haskell Slaughter. Evans is well known as a property lawyer and even has written a textbook on the subject. I sought him out because the lawsuit against me involved real-property issues, and a friend had told me that Evans was an expert in the field. Odom was Evans' assistant and handled most of the actual work on my case.
To be blunt, Evans and Odom cheated me raw. In the Shelby County case, we filed two motions for summary judgment, which were properly executed and supported with affidavits regarding material facts. On the first, McGarity did not respond as required by law, meaning summary judgment had to be granted and the case dismissed. On the second, McGarity did not respond at all--and that's because he had no case and his corrupt lawyer, William E. Swatek, surely knew it. Again, summary judgment had to be granted.
Judge J. Michael Joiner denied both summary judgment motions, contrary to clear, black-letter law. Evans and Odom had to know the judge was cheating me, but they did nothing about it. They even refused to file a counterclaim on my behalf, even though McGarity had built a fence on our property, enclosing about 400 square feet of our yard. It's hard to imagine a more egregious example of trespass.
Evans and Odom, however, did nothing to protect my rights, ensuring that I was on the defensive throughout the proceeding. So I fired them--and then sued them. Acting pro se, I filed the legal-malpractice lawsuit in Jefferson County Circuit Court on September 4, 2003--case number CV03--5627.
My original complaint was 12 pages long and outlined four counts against Evans and Odom--legal malpractice, fraudulent misrepresentation, fraudulent suppression, and fraudulent deceit. The action was brought pursuant to the Alabama Legal Services Liability Act, sections 6-5-570, et. seq., Code of Alabama. That's the catch-all statute for actions against legal services providers, and my complaint was filed well inside the two-year statute of limitations.
The Birmingham firm of Starnes & Atchison represented Evans and Odom and promptly filed a Motion to Dismiss under Rule 12(b)(6) of the Alabama Rules of Civil Procedure, claiming that I had failed to state a claim for which relief could be granted.
In an order dated December 5, 2003, Vance granted the Motion to Dismiss. I filed a Motion to Alter, Amend, or Vacate under Rule 59(e), but it was denied on January 5, 2004. The Alabama Court of Civil Appeals affirmed Vance's ruling, without an opinion, and the Alabama Supreme Court denied certiorari to hear the case.
Here's the key to understanding how Vance cheated me: When you read in the newspaper about a lawsuit being dismissed, it almost always means that summary judgment has been granted, under Rule 56. (Note: Summary judgment is handled under Rule 56 in federal cases, too.)
Summary judgment means that both parties have had an opportunity to conduct discovery, and one party or the other has shown that, based on the facts and the law presented, there is no reason for the case to go to trial.
That is very different from a Motion to Dismiss under Rule 12(b)(6). Such a motion, if granted, cuts off a case before it even gets started. It claims that the plaintiff's complaint, on its face, is insufficient--and the case should be dismissed without any discovery being conducted.
Most honest Alabama lawyers will tell you that filing a Rule 12(b)(6) motion is a waste of their time--and their client's money--because the motion almost never can be granted under the law.
Why? Federal courts and most state courts, including Alabama, operate under a "notice pleading" rule. What does that mean? Here is one definition:
[The] Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."
To overcome a Rule 12(b)(6) motion, I only needed to give Evans and Odom notice of what the claim was and the grounds for supporting it. I met that burden with this one sentence in my complaint, under "Count One--Legal Malpractice":
13. The actions and inactions of Defendants, as set forth in paragraphs 1 through 11 above, fall below that level of such reasonable care, skill and diligence that other similarly situated legal services providers in the same general line of practice as Defendants and in the same general locality ordinarily have and exercise in like cases.
That one sentence, noting that I had set forth 11 paragraphs of facts to support my claim, was sufficient to overcome Evans and Odom's Motion to Dismiss. In all, I provided 12 pages worth of facts and law--when only one sentence was sufficient. And Vance still could not get it right!
Jerome Hoffman, a professor at the University of Alabama School of Law, has written a book called Alabama Civil Procedure, and he probably is the foremost authority on that topic. What does he say about a Motion to Dismiss?
Courts do not favor motions to dismiss. As a Rule of thumb, Rule 12(b)(6) motions will almost never be granted by trial courts, and those that are will almost always be reversed by appellate courts.
Couldn't be more simple, could it? I've got a stump in my backyard that could have gotten it right on Starnes & Atchison's Motion to Dismiss--by denying it. But Robert Vance Jr. could not get the simplest of rulings correct under the law.
Hoffman makes it clear that this is not just his opinion of the law. He cites numerous Alabama cases, including Strain v. Hinkle, 457 So. 2d 394 (Ala., 1984); Sanders v. Judson College, 514 So. 2d 890 (Ala., 1987); and Butts v. Weiss, 346 So. 2d 422 (Ala. 1977).
For good measure, Hoffman gives examples of the rare instances where a Rule 12(b)(6) motion might properly be granted:
* When the complaint cites a grievance that is not covered under substantive law. Hoffman cites the example of a lawsuit brought because of a social snub.
* When certain affirmative defenses--such as statute of limitation, absolute immunity from suit, and qualified immunity from suit--are raised. For example, what if my complaint had stated that Evans and Odom had committed legal malpractice while representing me from January to June 1998, but my lawsuit was filed in 2003? On its face, my complaint would have missed the statute of limitations by a longshot and would properly be dismissed on a Rule 12(b)(6) motion.
That, however, was not the situation with my case. Evans and Odom did not even argue that I missed the statute of limitations (SOL). They did not argue any other affirmative defense. And they certainly did not argue that legal malpractice is not a legitimate cause of action.
I should note that many legal-malpractice cases get dismissed on statute of limitations grounds. The SOL in Alabama used to be six years. But 20 years ago or so, the Alabama Legislature (which is controlled by lawyers) changed the SOL to two years. That made it much more difficult to sue corrupt lawyers. Because legal malpractice often does not become apparent to the client until long after it has been committed, many cases get kicked on SOL grounds.
But even those are almost always dismissed on summary judgment, not on a Rule 12(b)(6). That's because discovery often is needed to determine when the statute of limitations clock lawfully began to tick.
Why did Evans and Odom, Starnes & Atchison--and Vance--want my case covered up at the Motion to Dismiss stage? Because discovery--interrogatories, depositions, production of documents, etc.--would have shown that Evans and Odom indeed committed legal malpractice against me. It also would have shown that they defrauded me. And the only way to keep that under wraps was to dismiss my lawsuit before it even got started, denying me fundamental rights guaranteed by the 14th Amendment of the U.S. Constitution.
Want to know a sign that a judge might be cheating you? He issues an order without citing any law. Or he makes some vague statement regarding the law, without providing any specifics. Consider this statement from Vance's order granting the Motion to Dismiss:
For the reasons stated in the defendants' motions, the plaintiff's complaint, as amended, fails to state a cause of action for which relief may be granted. Accordingly, the defendants' motion to dismiss the complaint, as amended, is hereby GRANTED.
For the reasons stated in the defendants' motions? Doesn't sound like Vance even looked at my complaint, does it? That's because he probably didn't. Sounds like he pretty much took his marching orders from Starnes & Atchison, doesn't it? That's because he probably did.
Did the defendant's motion make any reference to the actual law regarding a Rule 12(b)(6) motion. Of course not. That's because the lawyers from the esteemed Starnes & Atchison almost certainly knew the fix was in.
Want to know why our justice system is so screwed up? Under rules of the bar, the lawyers for Starnes & Atchison--not to mention Evans & Odom--were required to report a judge that they had to know was violating the law. The law is a self-regulating profession, so the rules required Evans & Odom (and their lawyers) to report a judge who was cheating.
But the judge was cheating in their favor. So what were the chances that they were going to uphold their responsibility under the law and report him? You know what they say about a snowball in hell.
Moral of the story? Corruption is not limited to Republican judges. And just because a judge has the word "Democrat" by his name, do not assume that he is going to be interested in the cause of regular people--or even the law. He might be mainly interested in protecting the interests of the legal profession--even its most corrupt practitioners.
Robert Vance Jr., sadly, is exactly that kind of judge.