When you hire a Metro Detroit bankruptcy attorney, it is important to consider whether or not your attorney is also an effective bankruptcy litigator.
While you may be tempted to focus on the convenience of a given bankruptcy lawyer’s office location or whether or not that lawyer charges the cheapest price in town, these are among the worst reasons to hire one lawyer over another.
Those emphasizing the affordability of a bankruptcy lawyer’s fees in searching for legal assistance with Chapter 7 or Chapter 13 bankruptcy often mistake the bankruptcy process as simply involving the filing of a few forms. To the contrary, bankruptcy is a highly adversarial Federal legal process in which multiple parties can easily wind up arguing over the fate of your case, your debt, or even your assets.
Thus, when searching for the best bankruptcy attorney to assist you, among the most important qualities to consider is whether or not a particular lawyer has the skill and experience to argue your case in court against aggressive and well-funded adversaries.
The purpose of this Article is to outline the qualities that make a run-of-the-mill lawyer an effective bankruptcy litigator.
First, a basic question—what in the world is a litigator?
What Is a Litigator, Anyway?
So what is a “litigator” and how is it different than any other sort of lawyer? Does it require a special degree? Or a certification?
You may remember how, in the movie Clueless, Alicia Silverstone’s character, “Cher,” described her lawyer father: “Daddy’s a litigator. Those are the scariest kind of lawyer. Even Lucy, our maid, is terrified of him.”
A litigator is simply, then, a lawyer who is scarier than the lawyer who drafted your will, then, right?
Not necessarily. In theory, any and every bankruptcy lawyer can be a litigator. Any lawyer can end up arguing a case in court. Every lawyer in Michigan has the same basic “J.D.” law degree and passed the same Michigan Bar Exam.
On paper, there is no difference between Cher’s father (played wonderfully by the great Dan Hedaya, by the way) and the schlubby guy drafting your estate plan in an unwindowed office. In practice, however, there is a great deal of difference.
Much of the differences between “every day” lawyers and “litigators” amount to nothing more than the personal preference and practice areas of the lawyer herself. Some lawyers really love to stand in front of a judge making artful oral arguments. Many, many others prefer to find the path to legal success for their clients in piles and piles of documents, without anyone needing (or wanting) them to say much of anything at all.
One sort of personality leads to litigation. The other doesn’t. Simple as that.
However, once a lawyer makes that choice, certain qualities will indeed be essential to effectiveness in the courtroom.
That courtroom action is, by the way, “litigation.” The back and forth leading up to trial from the moment a demand is made and a complaint filed with a court, the motion practice afterward, the backroom negotiation, and the trial itself. This is “litigation.”
None of this sounds like it describes a bankruptcy case, does it? Well, in most cases, it probably doesn’t. But, in many other cases, it definitely does.
When your right to a bankruptcy discharge, the dischargeability of a debt, or the question of whether or not you get to keep your home in a Chapter 7 or Chapter 13 bankruptcy lands you in front of a Federal bankruptcy judge, you’ll need an effective bankruptcy litigator on your side.
So what makes a bankruptcy petition robo-drafter into an effective litigator?
Key Characteristics of a Good Bankruptcy Litigator
Any Detroit bankruptcy case can develop into hardcore litigation. When you first schedule an initial consultation appointment with a bankruptcy attorney, you will want to be able to assess whether or not this person will be able to effectively litigate for you, should that skillset be required.
It is important to hire an effective bankruptcy litigator from the outset. Why? Because it is very difficult to find a bankruptcy attorney to take your case after it has already been filed by another attorney. Bankruptcy lawyers must have their fees approved by the Bankruptcy Court. This prevents bankruptcy attorneys, in many cases, from charging “rush rates” to prospective clients with incoming filing or response deadlines as other non-bankruptcy attorneys would. Further, each is well aware that, as a Chapter 7 or Chapter 13 debtor, you are unlikely to be particularly liquid if you’ve already paid another attorney all that you could afford.
Better to have retained the person for the job when the stuff hits the fan so that you are not in the position of shopping under the gun.
So how can you tell if you’re sitting in front of an effective bankruptcy litigator at that initial consultation?
Look for these characteristics:
Expertise and Knowledge
You obviously want a bankruptcy attorney who knows what they are doing. When an attorney tells you that he or she has practiced bankruptcy in Detroit for many decades, this is a good indication that this will be the case.
However, you will also want to ask a few follow-up questions, including whether or not that very experienced attorney will be representing you in court or if some lesser-experienced (or no-experience) associate will be instead. It is not uncommon that the attorney whose name hangs over the door to the office never actually leaves the office any longer.
Even good litigators get rusty. When was the last time this attorney set foot in Bankruptcy Court? Does he or she know who the current judges are? What they’re like on the bench? (And, most importantly, what pisses them off?)
You get the idea.
You may also want to ask the attorney for some examples of prior litigation and how the attorney managed to resolve those cases. How many cases has he or she won versus lost?
Finally, you may want to ask how many bankruptcy cases this law firm files each month. If the answer numbers over 50 (or 100 or more), ask what support staff the firm has and how available the attorney will be to you.
Beware the “very experienced” bankruptcy law firm that is actually what is known as a “bankruptcy mill” by other lawyers. These bankruptcy filing assembly line factories in which customer service and the willingness to litigate may be lesser priorities.
Strong Advocacy Skills
You won’t know whether your lawyer is skilled at oral advocacy until you see him or her mumbling around and shuffling papers at a podium–or arguing eloquently. You can, however, assess the attorney’s “togetherness” at your initial consultation.
Note in particular whether the attorney runs a smooth conversation, gliding from salient point to salient point, explaining (complicated) bankruptcy topics to you in an understandable manner—or not. Does the attorney look you in the eye? Ask you pertinent follow-up questions when you disclose facts such as the gold-plated Corvette you just re-titled to your cousin for 1 dollar?
If the lawyer hardly glances at you, barely takes any notes, and doesn’t seem to care what you say, and mumbles answers back at you, don’t expect to find a great bankruptcy litigator before you in the courtroom.
And then ask the questions, again, about how many cases the attorney has won or lost at trial.
The attention to detail in your consultation, as well as the interpersonal skills displayed at your bankruptcy consultation will, in other words, tell you much about how this person will behave and perform in court.
How to Find a Good Bankruptcy Litigator
Again, the worst way to find any sort of lawyer is to search based on price and on geography. Who cares if the lawyer’s office near your work? The Bankruptcy Courts in the eastern half of Michigan are located in downtown Detroit, Flint, Bay City, and, for Chapter 7 341 Meetings only, Ann Arbor. If you’re filing for bankruptcy, you’re going to have to get in your car and drive anyway.
A too-good-to-be-true, cheap quotation, meanwhile, is an indication that you’ve encountered (1) a desperate newbie with little to no courtroom experience; or (2) a bankruptcy mill in which the volume of cases filed per month is the firm’s priority.
Instead, ask trusted friends or family members for referrals based on personal experience (not billboards glimpsed on I-94, etc.). Read online reviews in detail. Forget any that say, “He was cheap!” and look for reviews that say things like, “My case wasn’t simple, and X handled it expertly and saved my home!” instead.
If you have a non-bankruptcy lawyer for estate planning or tax or other purposes, ask for a referral to a good bankruptcy litigator. Be specific about that last part: “litigator.” Attorneys are ethically bound to provide referrals only if they know that they attorney referred is competent to handle a matter.
When you finally schedule the consultation, do everything noted above. In particular, be cognizant as to whether you are being hurried in and out of a free consultation in 30 minutes or less. An attorney who spends 20 minutes with you and quotes you a low-end rate is evidence of a bankruptcy mill in action.
Qualities of Highly Effective Bankruptcy Litigators: The Bottom Line
Another important quality of a highly effective bankruptcy litigator is the question of whether or not the attorney is “Board Certified” in bankruptcy.
Board Certification in bankruptcy is only awarded to those attorneys who have handled a significant number of “adversary proceedings” in Bankruptcy Courts. Adversary Proceedings are those contested matters described above. They are “lawsuits” filed within bankruptcy cases.
If a bankruptcy attorney is Board Certified, this means that an independent organization has reviewed the attorney’s experienced and found that it sufficiently robust. Only an attorney who is Board Certified may refer to him- or herself as an “Expert” in a legal practice area.
Attorney Walter Metzen is one of just a few Board Certified Bankruptcy Experts in Michigan. Attorney Metzen has successfully represented Metro Detroit Chapter 7 and Chapter 13 bankruptcy clients for over 30 years and is well known to all Eastern District of Michigan Bankruptcy Judges and Trustees.
If you are considering filing for bankruptcy, contact us now to schedule your initial consultation.