8 Objections to Anticipate from Judges (and How to Respond)

Objection #1: Our lawyers don’t do a good enough job to be paid more.

Response:

• “Judges get what they pay for. The higher the fee, the more quality the judges can rightly demand.”

Objection #2: We just gave you an increase two years ago.

Possible Responses:

• “It wasn’t enough.”

• “We have had 40% inflation since then.”

• “The way we get paid is not working or doesn’t comply with the law.”

• “By no fault of our own, we are only able to collect _____% of what you approved as being reasonable. If you want us to be able to collect 100% of what you approved as being reasonable, the No-Look fee must be raised to $________.”

Objection #3: Chapter 13 is not that much work.

Response:

• “We all know this is not true.”

• Provide a detailed list of what all you have to do in even a garden-variety case, including checklists developed by your office, including mine here and here.

• If you keep paper files, show them how big your files are.

• In 2015, I presented three files that were four to eight inches thick at our public trial, pointing out that we either had to create every document in that file, or we had to read and analyze every piece of paper in the file.

• Submit hourly data to show much time is spent on even garden variety cases.

• One approach is to keep detailed time logs on 1 or more of your Chapter 13 files.

• Barring that, get detailed time records from an attorney who keeps hourly records, whether in your jurisdiction or elsewhere.

Objection #4: Debtors can’t afford to pay higher fees.

Response:

• “Much higher fees in other Districts have not brought things to a grinding halt.”

Objection #5: When we get a salary increase, you’ll get an increase.

Possible Responses:

• “How about you worry about that when we net what you judges get paid?”

• “We are not in control of what you judges get paid, but you are in control of what we get paid. Don’t take your frustrations out on us.”

• “You always get paid your salary, and you will always get 100% of your salary after you retire. We only collect _____% of what you approved. If you want to at least get us paid what you approved as reasonable, we need an increase to at least $______.”

Objection #6: You’re a good attorney, but I can’t justify paying more money to the attorneys who don’t do a good job.

Possible Responses:

• “Figure out how to punish them. Don’t take it out on the rest of us. Use sanctions or publicly dress-down bad attorneys.”

• “Incentivize attorneys to get better at their craft, perhaps through higher fees based on specialization certification or recognized skill or experience. Perhaps they can earn higher fees based on completion of a certain amount of yearly CLE. For instance, the MDNC requires 12 hours of bankruptcy law CLE each year for higher No-Look fees.”

Objection #7: If you want to get paid more, keep hourly records and submit your time.

Possible Responses:

• “This would cause us to lose most clients. Potential clients, already not able to pay their bills, will almost never agree to the uncertainty of hourly billing.”

• “Record keeping for hourly billing jacks up the already overburdened debtor’s cost of representation.”

• “Most consumer debtor firms are not set up to accommodate hourly billing.”

Objection #8: You need to pick better cases.

Possible Responses:

• “We already do. We only take on cases where it looks like the client can succeed. Otherwise, it’s just folly on our part. Otherwise, we’re doing it to ourselves.”

• “Unfortunately, just because somebody files bankruptcy, does not mean life doesn’t keep happening. And you judges know this because you hear about it every day in response to motions to dismiss and motions for relief from stay.”

• “Over 50% of cases fail by no fault of our own. They fail because life keeps happening–e.g., divorce, loss of job, car repossessed, sickness, emergencies, etc.”