Appealing to the BAP

I attended two mcle programs in the last week dealing with appeals to the BAP.  The first was at the State Bar meeting in Anaheim last weekend and the second was Saturday with the cdcbaa.  Judge Laura Taylor, Sarah Stevenson, Staff Attorney for the BAP, and Alan Vanderhoff were the featured speakers in Anaheim.  Judge Barry Russell, Susan Spraul, BAP Clerk of the Court, and Kathleen McCarthy were the guests of honor at Southwestern School of Law yesterday.

Lots of good advice and things to think about.  Last year there were 428 appeals to the BAP and 427 appeals to the District Court.

Comments from Judge Taylor:

• If you know your appeal is going to the Ninth Circuit, go through the BAP.  The BAP panel will “package it for you,” i.e., explain the issues to the Ninth Circuit.  There may even be a dissent that will say what you want, argue that you are right.
• If there is an issue of finality of the Order, it is very unlikely that the district court will be able to figure out if it is final so there is a much greater likelihood that the district court will dismiss the appeal.
• You need a crisp statement of issues.  “Ten issues screams out Loser.”
• The Standard of Review drives your entire brief.  If the court should reverse because the judge abused his discretion, explain why he abused his discretion.  “If the standard is de novo, go back to the Statute of Elizabeth if you want.”
• You probably don’t have 18 winning arguments.  Limit your brief to the good ones.  Tell the BAP what you are giving up on – they will appreciate that.
• Your opponent is probably not a serial killer.  Leave that stuff out.
• BAP opinions are not binding except on the case at hand.  Published BAP opinions are binding on the BAP.  There is an en banc procedure available to the BAP that it has used only a few times.  Apparently the 9th Circuit has made it known to the BAP that the BAP should fix its own mistakes.  So if there is a three judge published BAP ruling that you think is flat out wrong, ask the BAP to hear it en banc so that it can reverse the prior ruling.

Comments from Susan Spraul:

• If you are arguing that the judge erred on the facts, that is a loser if there is any evidence in the record.  You have to establish that “there is nothing in the record that supports that finding.”  Abuse of discretion come up most often in Motions for Relief.  That is tough.  Focus on why the judge abused his discretion.
• Know the record; know the record.  The judges don’t know the facts.  The first they have ever heard of these parties is in your brief.  Make it easy to find the facts in the record.  Call the parties by the status in the case.  “The debtor ” instead of Ms. Jones.  If WFB is first and Bank of America is second, say the first and second rather than WFB and B of A.
• Get the tentative into the record.  Or get the judge to say it at the hearing.  Ask the judge to clarify why he ruled the way he did so the BAP will know.
• Tell the BAP if the underlying case is dismissed.  That does not make the appeal automatically moot but it needs to be considered.  There is equitable mootness and constitutional mootness.  If the court agreed with you for one reason and rejected your two other reasons, you still won.  There is no longer a pending “case or controversy” as required by the constitution.
• Ask the judge for a stay pending appeal at the hearing no matter how clear it is that he will say no.  Ask him for a stay for a few weeks to give you time to ask the BAP for the stay.
• The BAP gets about 40 motions per month.  Motions require evidence just like in the real world.
• The BAP leans over backwards to give pro pers their chance.  Assume you are not going to get the case pitched out because the brief and record are abysmal.

Judge Russell make a couple of great comments.

• The BAP really does try to get it right.  He was comments on scuttlebut that we all hear that the BAP knows the bankruptcy judge and will simply rubber stamp the decision.  He said they know the 9th Circuit will review and anyway BAP judges are bankruptcy geeks – they really want to get it right.
• On making your brief clear and concise he quoted Winston Churchill who once said, “The length of this document defends it well against the risk that it will ever be read.”

Last add on rubber stamping the lower court.  I did a program on the Supreme Court for the SFVBA last Friday.  An attendee commented about how obvious it is that district judges rubber stamp bankruptcy judges.  I thought about my son who recently finished a stint as law clerk to a district court judge.  It is actually quite insulting to him to say that he did not sweat blood over bankruptcy appeals trying to make sure his recommendation to his judge was right.  His judge wants to get it right and not be reversed by the 9th Circuit.  Having said that he told me that his judge often mused about why in the world anyone would ever want a district court judge to rule on a bankruptcy issue when the BAP is available.