Alabama essentially comes out and tells counsel to look the other way when faced with a document laden with metadata, to essentially keep the wrapper on the candy bar.  This is a stark contrast to the usual scope of the attorney-client privilege, which imposes on the attorney a duty to keep the confidences.  Disclosing counsel is given a pass on its ethical duties regarding the secrets of clients, and the burden is passed on to a third party.

It’s important to understand just how important metadata is.  I blogged on the topic of metadata on one of my other sites, and you can access the post to review on your own.  But suffice to say metadata is the hidden code within a word processing document, the stuff you type and then delete before sending it along to a recipient.

How useful is it?  I was once in negotiations with a creditor on a stay violation and received a formal offer of settlement.  On running a program to detect metadata I found out that my opponent had significantly greater settlement authority and was trying to lowball me.

And lest you chide me for doing evil things, bear in mind that the ABA has issued a formal opinion giving the thumbs-up to a review of metadata.

In an Amended Motion to Redeem and Determine Rights in Property and her accompanying Memorandum of Law, the Debtor argued that the lender had no right to repossess the car because she was making regular post-petition payments. In other words, the Debtor argued that, because her post-petition payments were accepted by the lender, she had chosen the ride-through option sanctioned by the Third Circuit.

The court, however, disagreed and held that BAPCPA eliminated the ride-through option previously in place in the Third Circuit. In noting his disappointment, debtor counsel Henry Sommer pointed out that the loss of the ride-through option does not necessarily forestall a debtor’s rights under state law; the Rice court simply found that there was no federal right to keep and pay but did not address the state law claim that the creditor waived the default by accepting post-petition payments.

Sommer went on to state the he continues, “to be amazed at the extent the American auto makers seem to want to alienate their few remaining loyal customers, unlike the Japanese, who treat their customers much better in this situation.” In fact, consumer bankruptcy attorneys have found that foreign car companies have proven to be more amenable to accepting the ride-through option. Apparently American car companies are not content with making money from a continued revenue stream and prefer to “eat steel.”

A pair of young lawyers stopped by my office the other day, on their way back from court where the jury had just returned a verdict against them. The conversation naturally turned to a post mortem on the trial itself.

It was an autofraud case that boiled down to who you believe and the jury just didn’t see the consumer’s version of the truth to be the real truth.

They thought they had done everything right and couldn’t understand how the jury could rule against them, although the defense attorneys and the judge all seemed to think their case was a very difficult to win in the first place. They acknowledged knowing it wouldn’t be easy from the start, but they had believed in their client.

“Nothing wrong with that,” I told them, “sometimes you just have to do the fight, no matter what the result and sometimes losing a trial can be much more influential than winning it.”

“What do you mean?” They asked. “Well, it’s like Thermopolis, you know?” He said it sounded familiar but she didn’t know what I was referring to.

“The battle where 300 Spartans held off thousands of invaders in one battle. They lost the battle eventually, sure, but no one really remembers who the invaders were, where they came from, who their king was or anything else about them. What they remember is the Spartans and the fact that they wouldn’t quit and didn’t give up even when they knew there was no way they could win. That’s what is being talked about over at the courthouse today and at the defense attorneys’ offices. No one thought you had a chance but you still didn’t quit. Losing today probably earned you more respect than you realize.”

The year was 480 B.C. and the Byzantium empire’s massive Persian Army was advancing. History records it as between 200,000 and one million strong. The King of Persia intended to invade Greece and, in the face of overwhelming odds, the Greeks had few alternatives. They could give up or they could fight.

The Persian gateway to Greece was a 50 foot wide mountain pass at Thermopolis and everyone knew it. The Greeks decided to fight so they sent 300 Spartan solders to hold the Persian army back, to give them time to gather their forces. The Spartans knew that death was certain. It isn’t clear whether Spartan scouts or the Persian army commander was the one who said it, or if it was said it all, but the Spartan commander was told that when the Persian archers attached, there would be so many arrows in the sky that it would block out the sun. The Spartan commander’s response was brief. “Good. Today we shall do battle in the shade.”

300 Spartans fought fiercely for seven days but in the end, of course, they lost. Why did it matter? Because it gave the Greeks the time they needed to defeat the invading Persian Navy and turn back the entire invasion. Some historians say that the entire culture known as Western Civilization survived because of that one victory.

The Greeks knew they wouldn’t win at Thermopolis. That wasn’t the point. Sometimes it’s just like that when you are trying to decide whether or not to go to trial. Even when you don’t have the best case in the world (no one ever does, even when they think the do), sometimes you have to go to trial anyway.

Defense attorneys need to know you will go all the way, even when you have a “bad” case. After all, they will think that if you’re “crazy” enough to fight that hard on a case that they think you can’t possibly win, what will you do with a case that you can win?

If they know that you have the guts to stand up in front of a jury and earnestly argue your whole heart out for a client that the defense attorney thinks he can rip apart on cross, what will you do when you’ve got a client that they can’t touch?

If they know that you’ll go to trial in a case where you don’t have a single document to support the lies your client was told, they will only wonder what you’ll be like when you find a smoking gun.

Judges need to know you will go all the way too, and for all those same reasons and more. They need to know that if you think they’re wrong, that you’re not afraid to tell them so to their face (respectfully, of course, but also stubbornly).

Judges need to know that you will not back down when they tell you that you should settle for far less than you know your client should get, and far, far less than you know the defendant should have to pay. Judges also need to know that you’re not afraid to file an appeal when they make a mistake.

And best of all, when you go to trial, every judge in the building knows it. They all talk. Consumer Law cases are unique and often prompt behind-the-scenes discussions among judges, law clerks, bailiffs, and everyone else.

Defense attorneys, and judges, need to be constantly reminded that you know your law, you know how to try a case, and you aren’t afraid to do it when you have to.

Fear is what settles lawsuits and fear is the only way a defense attorney will settle with your client fairly.

Defense attorneys aren’t usually afraid of our clients. After all, they’ve been trained how to mislead them, how to trick them, how to chew them up. What they are afraid of is us, consumer trial attorneys. We take cases other people don’t know what to do with. And we fight them. Yes, I know it sounds a bit egotistical, but I think it’s the truth.

Lawyers know who the trial attorneys are. They are a disappearing breed and for that very reason they get more professional respect than do the white shirted suits in the hallways of corporate America.

Sometimes going to trial isn’t about winning. Sure, winning is nice. But sometimes the client just needs to have their day in court to say what they have waiting so very long to say. And sometimes a trial attorney just has to go to trial so everyone knows that you really will.

The next day, I learned that the wife of one of the lawyers who had stopped by to talk, sent a basket of cookies to the office with a note that said, “I truly admire your hard work and passion and know that you are in store for countless victories. As the old African proverb reminds us, ’smooth seas do not make skillful sailors.’ ” She’s right, I’m sure.

The Greek sailors probably would have agreed too. Oh yeah, one other thing: those cookies were really good too.

Though the creditor asked the court to follow the majority of courts that have allowed claims lacking adequate documentation in the absence of further proof that the claim is invalid, see, In re Heath, 331 B.R. 424, 434 (9th Cir.BAP2005), the court refused to do so.

The Court considered many of the cases holding the majority view distinguishable in two important ways: first, the Trustee, not the Debtor, was the objecting party here; and second, and more importantly, the Claim lacks any documentation, rather than the incomplete or inadequate documentation presented in many of the cases. The Court citedf the additional burden the majority view would impose on trustees by requiring additional proof of invalidity when a creditor has failed to cross the threshold required to achieve prima facie status. Additional evidence concerning the Claim (presumably from the Debtor), is as readily available to Next Bank/B-Line as to the Trustee. In this case, following the majority would place the burden on the Trustee to disprove the Claim.

The court instead looked to the cases that hold that a proof of claim can be disallowed for lack of appropriate documentation. See e.g. In re Henry, 311 B.R. 813, 817-18 (Bankr.W.D.Wash.2004)(”In the absence of that minimum evidentiary presentation, the creditor’s claim should be disallowed.”); and In re Armstrong, 320 B.R. 97, 105 (Bankr.N.D.Tex.2005) (lack of documentation requires claimant to establish the claim by a preponderance of the evidence); see also Matter of Stoecker, 5 F.3d 1022, 1028 (7th Cir.1993) (stating that lack of documentation means that creditor cannot stand on proof of claim but that creditor should be given an opportunity to amend its claim). Thus under this view, a creditor cannot rest on its proof of claim, but would be required to present more evidence meet its burden to establish a claim.

So what we have here is a tricky double standard. In a Chapter 7 a debtor does not have standing to object to a claim filed by a creditor - only the trustee has that right. In the context of a Chapter 13 case, a debtor can object to a faulty proof of claim but not necessarily on the basis that the documentation provided is inadequate. The trustee in a Chapter 7, on the other hand, does not have the benefit of the debtor’s knowledge when objecting to a proof of claim. As such, the trustee can fall back on the lack of documentation when objecting.