What's In a (Case) Name?
Sep. 1st, 2021 09:58 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
captainsblogI've mentioned here, in at least one or two previous posts, that the practice of law uniquely puts random people in a position of having famous cases named for them, rather than for the judges who decided them or the lawyers who argued them. It's a convention going back centuries, and has made random individuals named Palsgraf, Hadley (not Hedley!), Baxendale, Brown, Miranda, Sullivan, and Wade italicized fixtures in jurisprudence long after those actual individuals went off to that great courtroom in the sky. I say it's unique because in the other learned professions (medicine, science and such), principles are named for their inventors, discoverers or scribes, and not for the patients or piles of rock which happened to house those amazing finds.
In relatively rare cases, the law allows anonymity. Roe, opposite to the aforementioned Wade, was short for the pseudonym "Jane Roe;" the real Norma McCauley eventually outed herself in the process of first rejecting and eventually reaffirming the results of her now mostly-dead abortion case, which the Supremes eviscerasted today without actually bothering to overturn it. Custody and similar cases will usually go with Doe, or Roe, or just initials for the parties involved. Sometimes, the law gets stupid about it. There's a rape case in a county near here where a judge gagged the media from reporting the name of a convicted rapist who's being brought back in for probation violations- yes, the brat got probation- despite that name having already been reported in multiple news stories over the past several years. (It's Christopher Belter, Junior. I'm not media.)
One of the weirdest conventions is in criminal law, where prosecutions are brought, not in the name of the victim or the named District or US attorney, but, here at least, in the name of The People of the State of New York versus you dumb schnook who didn't know there was a speed trap there. Others use State versus X or Name of State versus Y. Since we're still on our Republic of Doyle binge, Canadian, UK and other Commonwealth governments will typically style their cases R. versus Jacob Doyle on any of his actual or undercover visits into Her Majesty's prisons. For my entire lifetime, that R has stood for Regina, aka Lilibet, until she finally goes Corgi paws-up. It will then magically morph into R for Rex, as in Chuckles the Heir or whichever of HIS kids actually outlives QE2.
One of a lawyer's ambitions in life is NOT to get a client's name- or worse, their own- memorialized in the name of a case which becomes precedential and gets cited over and over in subsequent briefs, arguments and decisions, or, at the top of the cream, becomes shorthand in general culture like Miranda and Roe have.
I've been lucky in that regard. Perhaps the closest I ever came was secondhand: knowing the backstory of a case that originated in Rochester, went to the appellate court in NYC a rung below SCOTUS, and came back to help, rather than haunt, in a new referral I got last month. Even though I did not represent the client in the case by the time it reached the Second Circuit, I will still anonymize him here- to a name that is similar to his actual one. At least locally, the decision he produced has risen to the level of shorthand, and bankruptcy lawyers frequently talk among ourselves about whether a debtor in an unusual, but not rare, situation has what I will refer to here as "a Soprano problem."
And it has nothing to do with ducks in your pool.
----
I met Joe Soprano in my original office in Rochester sometime before 1990. He had been sued by one of the many banks in that community which no longer exists- one which I had never represented, but which I knew well. We will call them Columbia Bank here, even though that wasn't its name, because on my ill-fated will execution adventure last week, we tried to have lunch in a Thai restaurant across the street from my Penfield office which was once a Columbia branch.
Joe came in soon after Columbia sued him. We discussed defending the case, settling it, or possibly his filing bankruptcy. Ultimately, he did none of these things, and a default judgment was secured against him in the primary trial court in and for the County of Monroe.
I then left that firm, and any ongoing client relationship with Joe. But within a few years, I became aware of what a "Soprano problem" was. You don't need to click the link to understand what happened, but you're welcome to dive in.
If Joe had filed for bankruptcy before Columbia entered its judgment, it wouldn't and couldn't have.
If Joe had owned real estate in Monroe County before Columbia entered its judgment, he could have removed it as a lien on that property. It's an easy-peasy procedure, with cookbook math, little issue over entitlement to it. But Joe didn't own real estate when Columbia entered its judgment.
If he had stayed that way until after he did file, it would have been easier-peasier; a simple affidavit from him, prepared by his bankruptcy attorney, would be accepted by any reputable title insurer to confirm that, in less than legal terms, Nothing from Nothing Leaves Nothing.
So basically, the only scenario where Joe would have an eponymous "problem" would be this:
(a) Columbia enters a judgment;
(b) Joe somehow manages to buy a house in the same county despite having this ding on his credit (most banks, then and now, would be well advised to run public record searches on buyers they were giving mortgages to, precisely to prevent this issue);
(c) THEN Joe files bankruptcy, files the easy-peasy motion to remove the judgment from impairing his exemption in his now-owned real estate, and eventually loses.
See, the judgment is older than his entry into title. "First in time, first in right" is a real estate principle that not even bankruptcy can mess with.
I know. It was your understanding there would be no math.
Suffice it, whether you read (or understood) all that or not, that Joe took the one and only approach to his legal issue that contained the hottest of water. He did not hire me when we met, nor anyone there or elsewhere, to oppose Columbia entering judgment against him in 1990. He then acquired title to a home in 1994, months after I left that employ. And he eventually hired my then-former firm to wander into Bankruptcy Court in 1995, long after I had left the building, and sought to use an otherwise easy-peasy procedure to clear Columbia's judgment from his title. He won, and won again, at both the levels of the Bankruptcy Court and the federal District Court above it which sits as an initial appellate court over its decisions (but which, 90 percent of the time, affirms those decisions because, hey, the Bankruptcy Judge knows what he's doing).
But Columbia was relentless. It probably dropped more in legal fees to oppose this relief all the way to NEW YORK CITY than it ever would have recovered out of its victory. But it did, and it won on the second and final appeal. As a result, in our court, it is now an essential element, of that easy-peasy process, to show the Bankruptcy Judge that the debtor's acquisition of title preceded the docketing of the otherwise avoidable judgment against his, her or their interest in that title.
(PS: Best as public records can show, Columbia never got paid a dime for all its effort. That judgment still shows as open against Joe's interest, and it expired as a lien sometime in 2000 and became conclusively presumed to have been paid in 2010.)
(PPS: When I attended a virtual bankruptcy seminar back in late June, it was the first I learned that Columbia's relentless attorney, who had also been a help to me in the months following my mentor's death in 1986 and who I always got along with, had died in the past year.)
Since then, at least in our court (and probably throughout the rest of the state, Connecticut and Vermont, all of which are bound by the Second Circuit's precedent) Soprano's real name refers to this issue. The joke I often make is "Tell your lawyer if your Soprano problem lasts for less than ten years."
This week, though, Joe returned in a good way.
----
Here's yet another spin on the facts. Referring counsel sued another random dude; let's call him Paulie Walnuts. Paulie and his wife owned a home at the time, but Paulie, not being the sharpest shiv in the drawer, tried to protect his equity by deeding the home over to his mother.
I'll spare you eight paragraphs on why this does not work, but then three things happened in the following order:
(1) The referring lawyer entered a judgment against Paulie;
(2) Paulie's mother deeded the house back to her son and his then-wife, no doubt after SOMEBODY finally reviewed the case law on what a dumb idea it was to transfer it to mom in the first place; and
(3) Mr. and Mrs. Paulie got divorced.
That third bit is off the track of my main point, but without getting into tenancies under New York real property law, trust me: it meant that the referring lawyer could now seek the sale of the house and payment of his client's judgment out of Paulie's half of the equity, something he couldn't have done if the Paulies had still been in wedded bliss.
Paulie's lawyer sent a letter to the lawyer who referred this to me. "I'm gonna put Paulie into bankruptcy, remove your judgment under the easy-peasy procedure, and you'll be SOL, so take this pittance of an offer."
I didn't recognize the name of Paulie's lawyer from the stable of usual suspects who used to hang around the courtroom with me three days a week. And sure enough, once I got into the sequence of events, it became clear that Paulie had a Soprano problem and he wasn't going to be doing squat to remove my not-yet client's judgment under the easy-peasy procedure.
When and if they hire me, I may just copy and paste this blog entry as my brief. But only after changing the names back. Because the last thing I need is Tony's surviving soldiers coming after me for going after his easy-peasy.
In relatively rare cases, the law allows anonymity. Roe, opposite to the aforementioned Wade, was short for the pseudonym "Jane Roe;" the real Norma McCauley eventually outed herself in the process of first rejecting and eventually reaffirming the results of her now mostly-dead abortion case, which the Supremes eviscerasted today without actually bothering to overturn it. Custody and similar cases will usually go with Doe, or Roe, or just initials for the parties involved. Sometimes, the law gets stupid about it. There's a rape case in a county near here where a judge gagged the media from reporting the name of a convicted rapist who's being brought back in for probation violations- yes, the brat got probation- despite that name having already been reported in multiple news stories over the past several years. (It's Christopher Belter, Junior. I'm not media.)
One of the weirdest conventions is in criminal law, where prosecutions are brought, not in the name of the victim or the named District or US attorney, but, here at least, in the name of The People of the State of New York versus you dumb schnook who didn't know there was a speed trap there. Others use State versus X or Name of State versus Y. Since we're still on our Republic of Doyle binge, Canadian, UK and other Commonwealth governments will typically style their cases R. versus Jacob Doyle on any of his actual or undercover visits into Her Majesty's prisons. For my entire lifetime, that R has stood for Regina, aka Lilibet, until she finally goes Corgi paws-up. It will then magically morph into R for Rex, as in Chuckles the Heir or whichever of HIS kids actually outlives QE2.
One of a lawyer's ambitions in life is NOT to get a client's name- or worse, their own- memorialized in the name of a case which becomes precedential and gets cited over and over in subsequent briefs, arguments and decisions, or, at the top of the cream, becomes shorthand in general culture like Miranda and Roe have.
I've been lucky in that regard. Perhaps the closest I ever came was secondhand: knowing the backstory of a case that originated in Rochester, went to the appellate court in NYC a rung below SCOTUS, and came back to help, rather than haunt, in a new referral I got last month. Even though I did not represent the client in the case by the time it reached the Second Circuit, I will still anonymize him here- to a name that is similar to his actual one. At least locally, the decision he produced has risen to the level of shorthand, and bankruptcy lawyers frequently talk among ourselves about whether a debtor in an unusual, but not rare, situation has what I will refer to here as "a Soprano problem."
And it has nothing to do with ducks in your pool.
----
I met Joe Soprano in my original office in Rochester sometime before 1990. He had been sued by one of the many banks in that community which no longer exists- one which I had never represented, but which I knew well. We will call them Columbia Bank here, even though that wasn't its name, because on my ill-fated will execution adventure last week, we tried to have lunch in a Thai restaurant across the street from my Penfield office which was once a Columbia branch.
Joe came in soon after Columbia sued him. We discussed defending the case, settling it, or possibly his filing bankruptcy. Ultimately, he did none of these things, and a default judgment was secured against him in the primary trial court in and for the County of Monroe.
I then left that firm, and any ongoing client relationship with Joe. But within a few years, I became aware of what a "Soprano problem" was. You don't need to click the link to understand what happened, but you're welcome to dive in.
If Joe had filed for bankruptcy before Columbia entered its judgment, it wouldn't and couldn't have.
If Joe had owned real estate in Monroe County before Columbia entered its judgment, he could have removed it as a lien on that property. It's an easy-peasy procedure, with cookbook math, little issue over entitlement to it. But Joe didn't own real estate when Columbia entered its judgment.
If he had stayed that way until after he did file, it would have been easier-peasier; a simple affidavit from him, prepared by his bankruptcy attorney, would be accepted by any reputable title insurer to confirm that, in less than legal terms, Nothing from Nothing Leaves Nothing.
So basically, the only scenario where Joe would have an eponymous "problem" would be this:
(a) Columbia enters a judgment;
(b) Joe somehow manages to buy a house in the same county despite having this ding on his credit (most banks, then and now, would be well advised to run public record searches on buyers they were giving mortgages to, precisely to prevent this issue);
(c) THEN Joe files bankruptcy, files the easy-peasy motion to remove the judgment from impairing his exemption in his now-owned real estate, and eventually loses.
See, the judgment is older than his entry into title. "First in time, first in right" is a real estate principle that not even bankruptcy can mess with.
I know. It was your understanding there would be no math.
Suffice it, whether you read (or understood) all that or not, that Joe took the one and only approach to his legal issue that contained the hottest of water. He did not hire me when we met, nor anyone there or elsewhere, to oppose Columbia entering judgment against him in 1990. He then acquired title to a home in 1994, months after I left that employ. And he eventually hired my then-former firm to wander into Bankruptcy Court in 1995, long after I had left the building, and sought to use an otherwise easy-peasy procedure to clear Columbia's judgment from his title. He won, and won again, at both the levels of the Bankruptcy Court and the federal District Court above it which sits as an initial appellate court over its decisions (but which, 90 percent of the time, affirms those decisions because, hey, the Bankruptcy Judge knows what he's doing).
But Columbia was relentless. It probably dropped more in legal fees to oppose this relief all the way to NEW YORK CITY than it ever would have recovered out of its victory. But it did, and it won on the second and final appeal. As a result, in our court, it is now an essential element, of that easy-peasy process, to show the Bankruptcy Judge that the debtor's acquisition of title preceded the docketing of the otherwise avoidable judgment against his, her or their interest in that title.
(PS: Best as public records can show, Columbia never got paid a dime for all its effort. That judgment still shows as open against Joe's interest, and it expired as a lien sometime in 2000 and became conclusively presumed to have been paid in 2010.)
(PPS: When I attended a virtual bankruptcy seminar back in late June, it was the first I learned that Columbia's relentless attorney, who had also been a help to me in the months following my mentor's death in 1986 and who I always got along with, had died in the past year.)
Since then, at least in our court (and probably throughout the rest of the state, Connecticut and Vermont, all of which are bound by the Second Circuit's precedent) Soprano's real name refers to this issue. The joke I often make is "Tell your lawyer if your Soprano problem lasts for less than ten years."
This week, though, Joe returned in a good way.
----
Here's yet another spin on the facts. Referring counsel sued another random dude; let's call him Paulie Walnuts. Paulie and his wife owned a home at the time, but Paulie, not being the sharpest shiv in the drawer, tried to protect his equity by deeding the home over to his mother.
I'll spare you eight paragraphs on why this does not work, but then three things happened in the following order:
(1) The referring lawyer entered a judgment against Paulie;
(2) Paulie's mother deeded the house back to her son and his then-wife, no doubt after SOMEBODY finally reviewed the case law on what a dumb idea it was to transfer it to mom in the first place; and
(3) Mr. and Mrs. Paulie got divorced.
That third bit is off the track of my main point, but without getting into tenancies under New York real property law, trust me: it meant that the referring lawyer could now seek the sale of the house and payment of his client's judgment out of Paulie's half of the equity, something he couldn't have done if the Paulies had still been in wedded bliss.
Paulie's lawyer sent a letter to the lawyer who referred this to me. "I'm gonna put Paulie into bankruptcy, remove your judgment under the easy-peasy procedure, and you'll be SOL, so take this pittance of an offer."
I didn't recognize the name of Paulie's lawyer from the stable of usual suspects who used to hang around the courtroom with me three days a week. And sure enough, once I got into the sequence of events, it became clear that Paulie had a Soprano problem and he wasn't going to be doing squat to remove my not-yet client's judgment under the easy-peasy procedure.
When and if they hire me, I may just copy and paste this blog entry as my brief. But only after changing the names back. Because the last thing I need is Tony's surviving soldiers coming after me for going after his easy-peasy.