Bankruptcy Judge Paul R. Warren of our local Rochester Bankruptcy court (Western District of New York – Rochester Division), is now starting to issue written opinions. Judge Warren assumed to bench in Rochester in March 2012, and for the first two years of his tenure he issued no written opinions. The judge had announced publically that he anticipated to follow the practice of “rule and roll” — entering prepared decisions on the record from the bench but not issuing them in written form for the general public. That practice has changed significantly in the past three months.
Written decisions in the Western District of New York are not issued all that frequently. For example, Judge Michael J. Kaplan of Buffalo only issued four in 2013 and eight in 2014, and Carl L. Bucki, the other Buffalo bankruptcy judge, issued only six in 2013 and nine in 2014. But Judge Kaplan and Judge Bucki have been sitting on the bench for over twenty years, and their positions on many bankruptcy issues are already well known, after dozens and dozens of written decisions issued over the years. Judge Warren’s positions on various issues were unknown, undoubtedly to the judge himself as well as to practitioners in his court, when he took the bench, after two decades as the court clerk.
Judges, including Judge Warren, write decisions all the time, most often in cases where there might be an appeal. The written decision sets out “for the record” the facts of a case and the judge’s legal grounds for a decision. The appellate court can then see exactly what the judge has done. In a simple case, say a routine motion, the judge may just extemporize the decision at the hearing, verbally setting out legal conclusions based on arguments, papers and notes he or she have made on the case. But in complicated or important cases, the judge will prepare a written decision that usually runs 15 to 30 pages or more.
Before the internet age, these written decisions might be maintained in a folder in the clerk’s office, or photo copies might have been distributed to a few key people in the court system. But now every bankruptcy court has a web site, and, obviously, it is very easy to post a written decision on the local site. The Bankruptcy Court Clerk’s Office in the Western District of New York maintains a copy of written decisions. These decisions are indexed by year and by judge, and can be searched by key words as well.
Only a few of the decisions from our local court are formally “published”; that is, submitted to West’s Bankruptcy Reporter for printing. Judges usually only submit decisions “for publication” they believe add to national discussion of important bankruptcy legal issues. Reported cases have the letters “B.R.” (for Bankruptcy Reporter) in their cited names, such as “In re. Smith, 999 BR 1234, which would be found in volume 999 of the Bankruptcy Reporter, starting on page 1234. Non-published decisions would be cited by case name, number and date, such as “In re Smith, chapter 7 case #15-29999 (PRW), decision January 1, 2015”.
By the way, if your curious, bankruptcy case numbering around the country follow the same system: the first two digits in the case number(in our example, the “15”) refers to the year the case was filed (2015); the first number following the dash refers to the division of the court (in our court, all Rochester cases start with ‘2’ and all Buffalo cases start with ‘1’), the next four digits list the consecutive number of the case, with case #00001 being the first case filed that year, and the three letters following the number being the initials of the judge assigned to the case (in our court that would be PRW, MJK and CLB).
These “not for publication” written decisions are mostly intended to inform the local practitioners in their jurisdictions about the practices, procedures and policies of the judges in their courts. Sometimes they are issued in complicated cases where a written decision is needed but the result is of limited interest to anyone other than the parties to the case. These ‘unofficial’ decisions are not intended to be cited for authority by litigants in other courts, but I can tell you from personal experience that they are, especially when official cases on an issue cannot be found or where unofficial opinions support official ones.
In any case, for the first two years of Judge Warren’s tenure, none of his written decisions were available on the court’s website. His first decision on the court site appeared in April 2014, the next in September, and from October 2014 through January 2015 six more opinions have appeared.
It is important for a bankruptcy attorney to be informed of all the current trends, changes and developments in local practice, to better assist clients in preparing their cases. An out-of-state (or, worse, an out-of-touch) attorney might miss a change in local practice, and lead a client into a situation that may be very unfortunate for the debtor. This is especially important in chapter 7 bankruptcy cases: once a chapter 7 case is filed, it cannot be unfiled: the legal grounds to have a chapter 7 case withdrawn are whether the dismissal would be in the best interest of the creditors, not the debtor. If an attorney has missed a development, and a debtor files a case where something very bad happens, the client usually cannot avoid the problem by backing out of the case.
If you live in the Greater Rochester NY area and wish to review your situation, by phone at no charge, with an experienced bankruptcy practitioner who follows local changes in bankruptcy practice, please feel free to call or email me through my website.