According to a New York Times article, more and more people are representing themselves in court. I have had much experience counseling debtors who have initially elected to seek bankruptcy protection without the benefit of counsel. There are many reasons for this: the lack of money to hire an attorney being one of them, if not the biggest. Another, and perhaps more troubling reason is that pro see filers have a belief that a judge will help them through the process.
From the article:
Judges complain that people miss deadlines, fail to bring the right documents or evidence and are simply unprepared for legal proceedings. Such mistakes make it more likely they will fare poorly – no matter the merit of their cases.
This applies in any courtroom, and in any legal proceeding. If you want to represent yourself, you have to be prepared. That means, you have to know what the legal issues are (not what you think the legal issues are or should be) and have your ducks and documents all lined up. It also helps if you know the law.
But relying on the judge to help your is tantamount to ignoring that the role of the judge actually is. As the Times discusses:
Overseeing a proceeding where one or both sides lack lawyers puts a judge in a difficult position: The judge is supposed to be neutral but also has an interest in moving things along.
“If you see a person making a terrible mistake, you can’t always jump in and save them,” said Judge Borbely, the circuit court judge in Vermilion County, Ill. “You cannot take the role of an advocate.”
To ensure fair outcomes, courts must do more to help people navigate the courts, said John T. Broderick, the chief justice of New Hampshire. “If you and I went to the hospital and they said, ‘Do you have insurance?’ and we don’t, and they said, ‘There are some textbooks over there with some really good illustrations,’ ” Judge Broderick said, “we would think that was immoral.”
At the same time however, while courts can and do offer navigation assistance (such as the Pro Se Clerk at the US Bankruptcy Court), they cannot offer legal advice and the judges cannot be your advocate.
A Thought or Two on ‘Deadbeats’
Recently, I attended a seminar that covered a variety of topics related to bankruptcy law. During one of the non-consumer related presentations, a word was used to refer to a debtor. Not any particular debtor, but rather in terms of a description or hypothetical. While technically it was a business presentation, and arguably, the word as it was used (rather repeatedly) does not necessarily imply some personification of the word, it’s difficult for me to hear the word and not think that it refers to a person. I write about this word because as a bankruptcy lawyer, I found the word offensive. The word is deadbeat.
I expect people who do not understand bankruptcy or who have little sympathy for those who are experiencing financial difficulties to have some level of disdain for those who are experiencing it. In many cases, those are the type of people who work as collection agents – the ones who act like it’s their money that’s owed which is why they may treat consumers with little to no respect. They are also the ones who are very quick to point out that someone has not lived up to their end of an agreement…as if Western Civilization would collapse because of it. The use the term ‘deadbeat’ because it is judgmental, and it is offensive. But I expect a bit more from a bankruptcy attorney, regardless of whether their focus is consumer or commercial matters.
While representing consumers, it is common for me to be in court with attorneys representing lenders and other creditors. At no time have any of my colleagues who I see very regularly and most of whom I have tremendous respect for – said to me “why isn’t your deadbeat paying the mortgage?” or “why do you represent deadbeats?” Admittedly, some have said “why do you practice on the dark side?” which then leads me to respond with “I’m not, you are on the dark side…come to the light!” Then it turns into a volleying “no, you are!” discussion that inevitably leads to laughter. But I digress.
Had my colleagues used that word, I likely would have reacted in such a manner that most reasonable minds would conclude was counter productive. Perhaps even intemperate. But they do not because like me, I think many of my colleagues understand that for some people, life happens. Sometimes regrettable decisions are made by debtors. Sometimes decisions are made by others that debtors end up regretting. Sometimes it just is what it is. And we do what we do because we are compelled to help them through a difficult time.
Again, while I appreciate that some people with a certain amount of ignorance (or perhaps blindness) don’t share the same level of understanding I have with people struggling with debt, that is not to say I find the use of the term appropriate, especially when used by a bankruptcy attorney who should know better. To those attorneys, and to those readers who wonder where my head is on this subject, I say this: we accomplish nothing by sitting in judgment of people facing the prospect of seeking bankruptcy protection, and certainly there but for the grace of God, none of us have the right to.
After all, we can only plan and hope. No one really knows what tomorrow will bring. And those who did not plan well, or perhaps had far too high hopes don’t deserve being referred to as a deadbeat. By anyone.
Tags: Bad Debt Collectors, Bankruptcy, Commentary - Legal
Posted in Bankruptcy | No Comments »