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Bar News - July 19, 2013

Federal Practice and Bankruptcy: Judge Harwood Views Bankruptcy as a Generalist’s Domain


US Bankruptcy Court Judge Bruce Harwood was appointed last fall to preside over the the federal bankruptcy court in Manchester. He replaced retired Judge Michael Deasy, who is now on recall status.
After nearly 25 years as an attorney handling bankruptcy and insolvency cases at Sheehan Phinney Bass + Green, US Bankruptcy Court Chief Judge Bruce Harwood assumed the bench in Manchester this past March, in a court located four floors below his former office in the Hampshire Plaza.

“Once in a while, I still press the wrong button on the elevator,” Harwood said during a recent interview in his chambers.

Harwood became interested in bankruptcy law almost by accident. When he started his first job at a law firm in Chicago, one of his first cases involved a company that owned eight McDonald’s restaurants that was filing Chapter 11 bankruptcy. McDonald’s sought to terminate its franchise agreement with the company, and the case became the proverbial David and Goliath battle.

“Through that process, I learned that David’s got some pretty good slingshots, through the bankruptcy code,” Harwood said.

Bankruptcy law retains his interest, he said, because it so often overlaps various other practice areas, such as corporate and transactional law, personal injury, environmental and common law.

“As much as people think of bankruptcy as a specialty, I basically think of it as the last refuge for people of the liberal arts orientation,” he said.

Despite decades of experience in bankruptcy law, Harwood said the switch from the counsel table to the bench has been challenging. “For the first couple of weeks, the inside of my head felt like, and probably looked like, the inside of a snow globe,” he said.

First, there was the physical change in his vantage point in the courtroom. Not only is he now facing all of the parties head-on, he’s also far away (about 15 feet) and seated on a higher plane.

“It was like looking through the wrong end of binoculars,” he said.

Then there’s the robe, a previously foreign garment that, if one is not careful, can be a tripping hazzard. But making these adjustments has added a new dimension to Harwood’s legal career that he says has been most enjoyable so far.

Harwood said he tries to rule from the bench whenever possible. When he needs to study issues more closely, he works with the three law clerks at the court and tries to issue a ruling quickly. Many of his decisions must be issued within certain time frames.

For attorneys litigating cases in bankruptcy court, or any court, Harwood said the most important thing is to guard their integrity.

“Their credibility is paramount. The best way to remain credible is to be candid and straightforward,” he said. He added that litigants should always be prepared for hearings. “‘It’s not my case,’ is the wrong thing to say, because when you walk into court, it is your case.”

When he was appointed last year, Harwood replaced the retiring Judge Michael Deasy, who is now on recall status and continues to sit on the bankruptcy court bench part-time. Harwood’s is currently the only permanent judgeship at the bankruptcy court.

Judge Deasy had filled a second judgeship, created in the late 1990s, which was not permanent. The position was eliminated with Judge Mark Vaughn’s retirement in 2010, at which time Deasy replaced Vaughn. An attempt to make the second judgeship in the NH court permanent died in the US Senate in late 2010, effectively doubling Judge Deasy’s caseload at the time. To prevent backlog, two bankruptcy judges from Maine traveled to Manchester regularly to hear New Hampshire cases.

Fortunately, in keeping with national economic trends, bankruptcy filings across all chapters during the first half of 2013 were down nearly 21 percent from the same period last year, according to Jennifer Hayes, who was appointed clerk of the bankruptcy court late last year. Hayes formerly worked as a law clerk for Judge Vaughn and then Judge Deasy for a total of 16 years.

“Having worked on the chambers side, I thought it would be interesting to make the switch to administration,” Hayes said recently.

Hayes replaced former clerk George Vannah last November. Asked for any advice she might have for bankruptcy practitioners, Hayes said: “Get to know the courtroom deputies. They’re your friends in terms of scheduling.”

The majority of the 3,902 bankruptcy cases in New Hampshire last year involved consumer bankruptcy. Harwood, who handled mostly commercial cases in private practice, had experience with consumer cases through his appointment as a US Bankruptcy Trustee, a role in which he monitored filings to ensure proper court and case procedures were being followed.

Since a sweeping amendment to the bankruptcy code took effect in October 2005 (and the spike in Chapter 7 filings leading up to that), the number of cases being filed under Chapter 13 has increased, Harwood said, due to changes in limits on secured and unsecured assets.

Meanwhile, “There aren’t as many complex commercial bankruptcy cases being filed in New England as there used to be,” Harwood said, explaining that many companies view venues such as Delaware and New York as more conducive to those kinds of complicated bankruptcy and restructuring cases.

Harwood, an amateur astronomer who has three sons, says that while he enjoyed his time as an attorney and advocating for clients, he also likes looking at both sides of a case and determining a fair and just outcome.

“Whatever I miss about practicing law, I love even more about being a judge,” he said.

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