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August 21, 2012 Articles

Interview with Hon. James P. Smith

The committee is pleased to provide an interview with Hon. James P. Smith, U.S. Bankruptcy Judge for the Middle District of Georgia.

By Robert Fishman and Jay Geller

The Bankruptcy & Insolvency Litigation Committee hopes to have from time to time an opportunity to introduce new judges to practitioners, particularly to new attorneys. The committee is pleased to provide below an interview with the Hon. James P. Smith, United States Bankruptcy Judge for the Middle District of Georgia. The interview was conducted by Robert Fishman and Jay Geller, the respective chair and vice-chair of the committee’s Business Litigation Subcommittee.

Q: Why did you want to become a bankruptcy judge?
A: As my predecessor, Robert Hershner, was approaching retirement, a number of people asked me whether I had any interest in applying for the position. I hadn’t really thought about it, and at that time, I didn’t have a burning desire to be a bankruptcy judge, but I was intrigued. Not long after that, I was at a Super Bowl party and talked about the possibility with Judge Hershner. That conversation made me even more intrigued. I guess I started to feel a bit like the ballplayer who wants the ball at the end of the game; I liked the prospect of being the person to make the decision. I think Judge Tracey Wise of the Eastern District of Kentucky, one of my “baby judge school classmates,” stated it well: “It came to seem like a natural progression for someone like myself who’d spent his entire career practicing bankruptcy law.”

Q: What was your legal experience before you were appointed to the bench? Private practice? Judicial experience? Bankruptcy? Business/Consumer?
A: I have practiced since 1981. I began my career at a five-person firm in Macon, Georgia. All we did was business litigation and bankruptcy. This was not long after the Bankruptcy Code had been adopted. We did consumer matters, business matters, debtor and creditor work, and business and commercial litigation. In July 1985, the firm merged with Arnall, Golden, and Gregory of Atlanta, Georgia. I spent 18 years with that firm, doing mostly creditor work and some telecom and franchisor work. In 2003, I left Arnall, Golden, and Gregory to rejoin some folks from my old firm, where we did mostly debtor work and almost exclusively business work. I joined the bench on February 22, 2010.

Q: Where did you go to Law School?
A: The University of Georgia. I was a triple Dawg: I got my undergraduate degree, my MBA , and my law degree there.

Q: Do/did you have a mentor? Is there another judge on whom you’ve tried to model yourself or who has had a significant impact on how you run your courtroom and treat attorneys and parties?
A: I would say that my mentor is my dear friend Jerry Kaplan, who hired me right out of law school. He also was Judge Hershner’s partner before Judge Hershner took the bench. Jerry gave the introduction speeches at Judge Hershner’s investiture and retirement, and at my investiture.

Q: Do you think it was—would have been—an advantage to have practiced bankruptcy law before becoming a judge? How about having been a litigator?
A: I think it would require a lot of studying and ramping up to become a bankruptcy judge without having practiced bankruptcy law. Similarly, I think it was a tremendous advantage to have been a litigator. Contrary to the old joke, the rules of evidence do apply in bankruptcy court, and I can tell the difference between those who are well versed in the rules and those who aren’t.

Q: After you were appointed, but before you took the bench, what were you most worried, concerned, about?
A: The consumer debtor cases. BAPCPA had come on board, and when it did, the firm that I was with basically cut off its consumer practice. Accordingly, I had little exposure to consumer bankruptcy issues and had a lot to learn. When I attend conferences now, I often attend the consumer sessions.

Q: How did you know what to do in your first days, weeks, and months on the bench? What was “baby judge school” like?
A: Having had 29 years of experience in the courtroom, I kind of knew what went on. I also spent the week after I was sworn in being trained on the computer system while Judge Hershner finished his term. I sat in on his consumer docket and watched during that week.

I attended “baby judge school” with two of your prior interviewees, Judge Chapman and Judge Wise. Unlike some of the judges, I was on the bench for two months before I went to Portland, Maine, for school. I think that baby judge school is designed to provide an elementary introduction to bankruptcy law, civil procedure, and evidence. I already knew a lot about that, although the Chapter 13 and consumer information was very helpful. The reverse may well have been true for new judges whose prior experience was, for example, serving as a Chapter 13 trustee. The most important thing to me about baby judge school was to share with my colleagues and to understand that there are no necessarily right or wrong ways to do things, just different ways.

Q: Is being a judge more isolating than what you did previously? How do you handle that isolation?
A: Although the attorneys at my firm were good friends, the age difference between them and me meant that we were not necessarily close social friends. Most of my social friends are not bankruptcy attorneys. As a result, I have not found the transition to be that difficult. For example, I didn’t have to break up a Saturday morning golf group when I took the bench.

Q: In that same vein, where do you draw the line on the “appearance of impropriety”? Have you maintained friendships with attorneys and other professionals? In what circumstances do you believe that recusal is appropriate? Would it be easier or harder to become a judge outside the district where you previously practiced? Would it be easier to be a judge in a multi-judge district?
A: As new judges, it is recommended to us that we recuse ourselves for two years from cases involving our old firms. I implemented that recommendation. I don’t really have a problem with avoiding the appearance of impropriety because of my association with people. Macon is a small community (approximately 150,000 countywide, approximately 90,000 in the city) where everyone knows everybody else. It is hard not to have associations with people. I do have lunch or dinner every few months with former colleagues, but I don’t believe that this presents a problem.

Q: Do you have a demeanor that you try to project from the bench?
A: I would say that my demeanor in the courtroom is a by-product of all of the judges before whom I’ve appeared around the country, and there are many. Like my colleague, Jimmy Walker, I try to ensure that no one leaves the court without having had ample opportunity to present his or her case. I am not in favor of cutting someone off because redirect has been completed or because the movant has replied to the objector’s argument; if someone has something new to say, I’m inclined to hear it.

I want attorneys to be aware that they are in federal court and to pay respect to the institution and to their opponents. I try to treat people with respect, I try to be patient, and I try not to take myself too seriously. Basically, I try to be the same person on and off the bench.

Especially with the consumer docket, it is not possible to read everything. I do my best to read things in advance, particularly those that are likely to be tried or argued. It always bothered me as a lawyer when I put so much time and effort into a matter and then appeared in court, and it was clear that the court had not read the papers. Yet, I also see it from the other side now, too; as a judge, you can spend a great deal of time reading papers only to find that the parties have resolved the matter when they come into court. I think that’s the nature of the beast; the system is not designed to be efficient, but rather to be fair.

Q: How do you prefer to be addressed, by first name or as “Judge”? Does it vary based on the circumstances?
A: I guess my desire is that those who knew me as Jim before I took the bench continue to call me Jim outside of court. Those who know me only as a judge can call me “Judge.” I haven’t experienced any problems in terms of respect inside or outside of the courtroom.

Q: Do you wear formal clothes under the robe, or is your chambers casual dress?
A: My courtroom is structured such that I have to walk across an open space to reach the bench. Accordingly, I can’t wear shorts under the robe. When I’m holding court, I wear a suit and tie, or sport coat and tie. When I’m not holding court, I tend to dress more casually, but I still wear a tie. One thing I think a judge has to consider is that his or her staff are employees of the federal judiciary, and they have a dress code imposed upon them. It would seem unfair for me to dress too casually while they are required to be in business attire.

Q: What do you look for in a law clerk? How do you allocate responsibility between you and the clerk?
A: I was very fortunate; I inherited a wonderful permanent clerk from Judge Hershner. This was one of my big concerns upon learning of my appointment: In the 11th circuit, a new judge can’t announce his appointment until after the background check has been completed, and you don’t go to “baby judge school” until after you are appointed. I feared that Judge Hershner’s staff might make other plans, but I was fortunate that they agreed to stay.

Q: How active a role do you play in settlement negotiations? Do you refer matters to other bankruptcy judges for mediation? Do you prefer to use other bankruptcy judges, private practitioners, or professional mediators to serve as bankruptcy mediators?
A: We have an informal mediation referral system in our court. We refer matters to the other judges at the parties’ request. I have mediated two cases to date (one successfully), and I haven’t yet referred a matter out for mediation.

As for settlement negotiations, I typically don’t get involved at all. If asked for my views, I will give my impressions. I also will leave the courtroom and return at the parties’ request, but I don’t try to impose my will. I don’t know the case like the parties do. I don’t bring people into chambers and lock the door until they settle. I don’t necessarily know what’s driving the case, and it may be a matter of high principle to one of the parties that simply can’t be compromised.

Q: How, if at all, does the national political climate affect you in your capacity as a bankruptcy judge? Solely by way of example, many judges have been critical of BAPCPA, and some have felt compelled to rule in ways that they believe is inequitable. How do you deal with these types of issues if at all?
A: I tend to be a strict constructionist and don’t interject my personal views. However, the original Bankruptcy Code was crafted with a lot of thought and insight to work as an integrated whole. In my opinion, some of the provisions of BAPCPA are not always consistent with the rest of the code. For example, the individual Chapter 11 provisions incorporate the projected disposable income concept for five years from Chapter 13, but there is no absolute priority rule in Chapter 13. To me, this appears to be a disconnect. Similarly, the individual Chapter 11 provisions provide that there is no discharge until plan payments are complete. What if the plan contemplates payment of a 30-year mortgage? I think that BAPCPA has created some inconsistencies that need to be resolved and some holes that need to be filled.

Q: Have you had to deal with out-of-town professionals who want to charge significantly higher rates than prevailing local rates? Do you have any policies that you follow in this area?
A: I haven’t had to deal with this issue yet. The Middle District of Georgia has a huge percentage of consumer cases, so I don’t see this issue as much as courts in jurisdictions that have big cases. I do have some Atlanta lawyers who come into the district, some of whom have rates that are 50 percent higher than those prevailing in Macon. I have no problem with that; I don’t want to discourage anyone from coming to our court.

Q: How difficult has it been to manage electronic discovery? How actively do you become involved in managing electronic discovery?
A: This also has not yet been an issue for me.

Q: How do/will you handle:

1. Counsel who doesn’t appear to know what he or she is doing? One counsel is more knowledgeable about trial technique and the Federal Rules of Evidence. He or she is in a position to exclude potentially important evidence or introduce potentially damaging evidence. How do you view your role as evidentiary gatekeeper in equitable proceedings? Do you intervene, or do you let the prepared counsel win the case?

A: One of the most difficult adjustments for me has been understanding that I am not the litigant in a proceeding who decides what questions to ask and what documents to offer into evidence. Rather, I have to let the parties litigate the matter the way they want to litigate it, not how I might do it. Thus, if a document is offered and no objection is made, then I’ll admit it, even if I know there is a valid objection to its introduction. However, if a debtor is not, in my opinion, being well served, I may become more active in the proceeding.

2. Neither counsel is asking the questions you want answered. Do you ask the question, or do you rule without the information?

A: I will not open a new can of worms to explore an area that has not been addressed by counsel, but I will ask questions to try to clarify facts that the parties have tried to present. I have no problem trying to clear up the fog after the attorneys are done. I will, however, give the attorneys a chance to question further after I have done so.

3. One or both counsel is being uncivil. What will you do?

A: I have had one instance in two years where I’ve raised my voice. I don’t use a gavel. I slapped my desk, said we’re not going to behave this way, sit down, cool off, and let’s start over. Everything went smoothly after that.

Q: What advantages and disadvantages do you perceive about being a bankruptcy judge versus, for example, a federal district court judge?
A: I have great respect for general trial judges. They have to know everything, not just a narrow body of law. I think I would find it daunting to be in that position.

Q: How would you compare the stress level of being a judge versus what you did previously?
A: I have found it to be much less stressful. I thought that I would worry, agonize over decisions, and be overly concerned about the impact of those decisions. However, probably 90 percent of the cases decide themselves after one hears the facts. Except for BAPCPA issues, most of the issues have been resolved at the circuit court level. I think that the lawyers also realize most of the time how cases are going to turn out. But the stress of billable hours, client development, et cetera—that’s gone.

Keywords: bankruptcy, litigation, Chapter 13, interview, James Smith, judge

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