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Robert Vance Jr. Is Not Fit to Serve on the Alabama Supreme Court, and Here Is Why

Posted on the 28 September 2012 by Rogershuler @RogerShuler

Robert Vance Jr. Is Not Fit to Serve on the Alabama Supreme Court, and Here Is Why

Robert Vance Jr.

Does Robert Vance Jr. have the skills, temperament, and ethical convictions to serve on the Alabama Supreme Court? The answer is a resounding no, and that comes from my first-hand courtroom experiences.
Many progressives, such as myself, might become nauseous at the thought of Republican Roy Moore bringing his strange mix of right-wing virtue and old-time religion to our state's highest court. Under normal circumstances, I would not consider a vote for Roy Moore. But the alternative is Robert Vance Jr., and I know for sure that he is ethically challenged and prone to unlawfully protect the interests of legal and corporate elites.
For all of Moore's wackiness, I've seen no signs that he intentionally rules contrary to established law and favors the legal establishment over everyday citizens. In fact, Moore might be willing to stand up to the thugs who run the Alabama State Bar, and that could help clean up our courts. Robert Vance Jr. almost certainly will be a toady for the State Bar--and that's why Roy Moore will get my vote on November 6.
I've reported before that Vance Jr. cheated me raw in a legal malpractice claim I brought against Jesse P. Evans III and Michael B. Odom. They were the first lawyers I hired to represent me in a bogus lawsuit filed by our criminally inclined neighbor, Mike McGarity, and his corrupt lawyer, William E. Swatek. Now, we are going into specifics, and this will not take long. It involves simple law, and the evidence of Vance's chicanery is overwhelming.
At issue is a Rule 12(b)(6) motion, also known as a "Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted." That is a mouthful, but the concept is simple. A defendant who files a Motion to Dismiss essentially is saying, "This complaint is deficient on its face, it cannot be corrected, and the plaintiff cannot prevail under any set of facts. Therefore, the case must be dismissed, and no discovery is necessary."
Those last five words are key; a defendant who files a Motion to Dismiss probably is desperate to avoid discovery--and that's why he's filing a motion that almost never should be granted, under the law.
How do we know that? Well, it comes from Jerome Hoffman, a professor at the University of Alabama School of Law and author of Alabama Civil Procedure. Here are Hoffman's words on the subject:
Courts do not favor motions to dismiss. As a Rule of thumb, Rule 12(b)(6) motions will almost never be granted by trial courts, and those that are will almost always be reversed by appellate courts.

Why is that? When my legal-malpractice claim was filed in 2003, federal courts and most state courts operated under a "notice pleading" rule. (A pair of U.S. Supreme Court cases styled Twombly [2007] and Iqbal [2009] have tightened pleading standards somewhat in federal cases. Those rulings had not come down at the time my case was heard, and my case was in state court anyway, where Twombly and Iqbal generally do not apply.) Here is one definition of notice pleading:
[The] Rules of Civil Procedure require only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."

That is a very low bar for a plaintiff to clear, and it explains why Motions to Dismiss should almost never be granted. The plaintiff need only give notice of a recognized legal claim, with a brief summation of the grounds upon which it rests, and that is sufficient to overcome a Motion to Dismiss. Most complaints can accomplish that in one page--in maybe one or two paragraphs, at most.
My legal-malpractice complaint was 12 pages long, filled with details and citations to relevant law. (You can read it at the end of this post.) No serious practitioner of the law could argue this complaint did not easily meet the standards of notice pleading. But Robert Vance Jr. granted the Motion to Dismiss anyway.
According to Jerome Hoffman, there are only about three scenarios where a Motion to Dismiss can legitimately be granted under Alabama law--and he spells them out:
* The complaint alleges wrongdoing that is not recognized under the law. Hoffman gives the example of someone filing suit because of a "social snub";
* The complaint, on its face, falls outside the relevant statute of limitations;
* The defendants, on the face of the complaint, are protected by some form of immunity.
None of those was a factor in my case. Evans and Odom could not argue with a straight face that legal-malpractice is not a recognized tort--and they did not even try. Many legal-malpractice claims get booted by the two-year of statute of limitations, but I beat the clock--and Evans and Odom did not argue otherwise. As private attorneys, Evans and Odom clearly did not enjoy any form of immunity from suit.
Robert Vance Jr. had no legal grounds for granting the Motion to Dismiss, and that is apparent from the wording of his order. (You can read it at the end of this post.) Vance does not make one single citation to law in his order. Here is the gist of his ruling:
For the reasons stated in the defendants' motions, the plaintiff's complaint, as amended, fails to state a cause of action for which relief may be granted. Accordingly, the defendants' motion to dismiss the complaint, as amended, is hereby GRANTED. The plaintiff's claims are hereby DISMISSED with prejudice, costs taxed as paid.

Let's briefly ponder the two passages in bold above. The Birmingham firm of Starnes and Atchison (now Starnes Davis Florie) represented Evans and Odom, with Bryan O. Balogh and W. Stancil Starnes handling the case. In the first bold section, Vance essentially informs us that the fine folks at Starnes and Atchison decided the case for him--and me. Vance apparently cannot be bothered to consider citations to law from both sides, or even come up with something on his own, so he simply adopts what one side, the defense, puts forth. Never mind that the question on a Motion to Dismiss is the sufficiency of the complaint, on its face--and the Starnes lawyers never made any showing that I failed to meet notice pleading requirements. In fact, they did not even raise the issue of notice pleading.
As for the second bold section, Vance Jr. actually says, in so many words, that legal malpractice is not a cause of action for which relief can be granted. Even the Starnes firm does not argue that.
How Vance Jr. could write that with a straight face is beyond my comprehension. And he wants us to take him seriously as a candidate for the highest judicial office in Alabama?
On second thought, here is what Vance might be saying with his ruling: "In my courtroom, legal malpractice is not a claim for which relief can be granted. That's not the law, of course, but that's how things are done in my courtroom. After all, I have to protect my friends in the legal tribe. If regular folks get screwed by lawyers and then get screwed again in my courtroom . . . well, that's just tough. Their problems are not my concern."
Sounds a little like Mitt Romney, doesn't it?
That's the real Robert Vance Jr. talking. Is it any wonder that lawyers from all the big firms seem enthusiastic about his candidacy? Isn't that reason enough for you and I to be against it?
  Evans Complaint Evans Vance1

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