Practice Tips from Hon. Meredith Jury (Ret.) (Bankruptcy)

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Practice Tips from Hon. Meredith Jury (Ret.)

Question from old bankruptcy lawyer:

Judge Jury, a judge made a ruling today that I think is wrong.  My client is adamant that I appeal but I'm afraid the judge will be mad at me.  Do you have a comfort blanket I might use to quell my fears?

I recognize that all practitioners in a court where they are likely to make repeated appearances before the same judge - such as the bankruptcy court in the CD CA – are worried that if they challenge the court’s ruling with an appeal, that move will have a negative impact on their representation of that party and perhaps other parties in that courtroom.  After all, the judge in question used his or her authority and (hopefully) hard work and diligence to make the ruling which the court thought was accurate and now you are disagreeing by filing the appeal.  Is that an afront to the judge?  Will she or he hold that against you? The answer unequivocally should be “no, never.”  Unfortunately, I know from personal observation that now and then the answer might be different for a judge with a petty personality, but that would never be a reason to not notice the appeal.

Every trial level judge, whether in the federal system or state court, knows the decisions he or she makes can be appealed.  We make the best call we can and if a party thinks it is wrong, we get appealed.  That is part of the job – and in some odd way, a comforting part of the job.  If we tussle with a close question - and even vacillate about whether our call is a correct one – knowing that there is an option for appellate review by new eyes can make it easier to make that tough decision.  This is especially true in the bankruptcy court, where ruling in a timely manner is often critical to the success or failure of a case.  It benefits no one if the court dithers, asks for additional briefing when everything has been briefed, or continues the matter for a later ruling.  Most of us are able to make the call, timely, because the losing party has a remedy.  Therefore, a judge should never take it personally if that appeal occurs.  Certainly not against the attorney filing the Notice of Appeal, as that person is diligently acting upon her duty to zealously represent a client and doing what is in the client’s best interest.  If the attorney believes the ruling is substantively flawed or procedurally deficient, then of course the NOA must follow.   It is a challenge to the court’s ruling – not a personal attack on the judge.

I know, I know, there are exceptions.  There are a few judges (and I truly mean a small minority) who forget that they wear a robe and play a role and if someone does not like how they played that role, they might be challenged.  To those judges who have made it all personal, whose ego is somehow on the line when they rule, the reaction is less predictable.  So if you are before a judge who by reputation lets his or her ego interfere with doing the job, you might be more wary.  However, even if you fear that outcome, you must nevertheless file that NOA if you agree with your client that an appeal could be successful.  I am not speaking here of a frivolous appeal; one with merit.  If there is no merit, then you need to have that long, frank talk with your client. 

Is that comfort?  In most courtrooms, I would hope so. In the rare exceptions, probably that won’t be the only issue you have with that particular judge.

Judge Meredith Jury (Ret.) served as a United States Bankruptcy Judge in the Central District of California for more than 20 years and also spent a decade on the Ninth Circuit Bankruptcy Appellate Panel, two years as the chief. Now retired from the bench, she remains active in the legal community doing mediations, a role she deeply enjoys. Over the course of her career, Judge Jury estimates she has conducted more than 1,200 mediations.