Legal Magazine

Robert Vance Jr. Would Not Be An Improvement Over Roy Moore for Alabama Chief Justice

Posted on the 30 August 2012 by Rogershuler @RogerShuler

Robert Vance Jr. Would Not Be An Improvement Over Roy Moore for Alabama Chief Justice

Robert Vance Jr.

Democrats generally seem heartened by recent news that Harry Lyon was disqualified as the party's candidate for chief justice of the Alabama Supreme Court. Democrats also seemed to applaud news that Jefferson County Circuit Judge Robert Vance Jr. would replace Lyon on the ballot, taking on Republican Roy Moore in November's general election.
Lyon is seen as a perennial candidate who is prone to making outrageous public statements. Moore is seen as a religious whack job, noted mainly for his ouster as chief justice in 2003 because of his refusal to remove a Ten Commandments monument he had ordered placed in the Alabama Judicial Building.
To progressives, moderates, and probably quite a few conservatives, Vance seems like the only sane choice. But everyday folks of a progressive/moderate bent might want to be careful about making assumptions. I have appeared in Vance's court, and I know from first-hand experience that he is anything but a friend to the common man. More importantly, he is not a friend to the rule of law.
Vance comes with a fine pedigree, but that's about it--and genuine Democrats should not let that fool them. His father was the late U.S. Circuit Judge Robert S. Vance Sr., who was seen as a genuine champion of civil rights. Vance Sr. was killed in December 1989 when he opened a mail bomb that had been sent to his Mountain Brook home. His death came as an appeal was pending on a case styled Avirgan v. Hull, which threatened to unveil secrets about drug and arms smuggling connected to the Bush family and the Iran-Contra Scandal.  As chief judge on the U.S. Eleventh Circuit Court of Appeals in Atlanta, Vance Sr. was seen as likely to push for a ruling that would overturn dismissal of the Avirgan case and bring Iran-Contra secrets to light.
Walter Leroy Moody, a white supremacist from south Alabama, was convicted in Vance Sr.'s murder and still resides on death row at the Holman Correctional Facility. But a number of investigative journalists have reported that Moody probably had little, if anything, to do with the mail bomb. Powerful evidence suggests  that Vance Sr. was killed in order to keep the Avirgan case under wraps, and indeed, a three-judge panel of the Eleventh Circuit went on to uphold the dismissal.
History tells us that Robert Vance Sr. was a man of convictions. His son, sadly, is anything but that. I know from personal experience that Vance Jr.'s main judicial philosophy, if you want to call it that, is to protect the interests of legal, corporate, and political elites. And he will twist the law beyond recognition in order to achieve his goals.
My take on Robert Vance Jr. is not necessarily welcome in progressive circles. A lot of folks seem to hear the name "Vance" and assume that he is one of them--a liberal who seeks to fight injustice. But this apple fell a long way from the tree--and there is a big difference between the two Vances.
How big is the gulf? I'm about as liberal as a white guy living in Alabama can be. And I've paid a steep price for speaking out about injustice; I was cheated out of my job at UAB because of the progressive tone of this blog, and my wife probably was cheated out of her job at Infinity Property and Casualty for the same reason.
I very much want Alabama courts to take a turn back toward the left. But if the election were tomorrow, I  would hold my nose and vote for Roy Moore. That's how little I think of Robert Vance Jr.
Speaking the truth about Vance Jr. tends to generate blowback in progressive circles. The matter becomes particularly sensitive when you consider that his wife, Joyce White Vance, was the Obama administration's appointee as U.S. attorney for the Northern District of Alabama. I found out about blowback when I wrote about my experiences before Vance Jr. back in 2009. Here are links to those posts:
Is Joyce White Vance the Answer for Justice in North Alabama?
Here Is One Way a Corrupt Alabama Judge Will Cheat You
The comments on the second post provide a prime example of the protective cloak that has developed around the Vances. What is my beef with Robert Vance Jr.? Here is a brief summary from the second post above:
How did Vance Jr. cheat me? Let me explain: It involved a legal malpractice claim I filed against Jesse P. Evans III and Michael B. Odom, the lawyers who originally defended me in the lawsuit filed by my troublesome Shelby County neighbor, Mike McGarity. 
At the time, Evans and Odom were with the Birmingham firm of Adams and Reese/Lange Simpson. They since have moved to Haskell Slaughter. Evans is well known as a property lawyer and even has written a textbook on the subject. I sought him out because the lawsuit against me involved real-property issues, and a friend had told me that Evans was an expert in the field. Odom was Evans' assistant and handled most of the actual work on my case. 
To be blunt, Evans and Odom cheated me raw. In the Shelby County case, we filed two motions for summary judgment, which were properly executed and supported with affidavits regarding material facts. On the first, McGarity did not respond as required by law, meaning summary judgment had to be granted and the case dismissed. On the second, McGarity did not respond at all--and that's because he had no case and his corrupt lawyer, William E. Swatek, surely knew it. Again, summary judgment had to be granted. 
Judge J. Michael Joiner denied both summary judgment motions, contrary to clear, black-letter law. Evans and Odom had to know the judge was cheating me, but they did nothing about it. They even refused to file a counterclaim on my behalf, even though McGarity had built a fence on our property, enclosing about 400 square feet of our yard. It's hard to imagine a more egregious example of trespass. 
Evans and Odom, however, did nothing to protect my rights, ensuring that I was on the defensive throughout the proceeding. So I fired them--and then sued them. Acting pro se, I filed the legal-malpractice lawsuit in Jefferson County Circuit Court on September 4, 2003--case number CV03--5627 
My original complaint was 12 pages long and outlined four counts against Evans and Odom--legal malpractice, fraudulent misrepresentation, fraudulent suppression, and fraudulent deceit. The action was brought pursuant to the Alabama Legal Services Liability Act, sections 6-5-570, et. seq., Code of Alabama. That's the catch-all statute for actions against legal services providers, and my complaint was filed well inside the two-year statute of limitations. 
The Birmingham firm of Starnes and Atchison represented Evans and Odom and promptly filed a Motion to Dismiss under Rule 12(b)(6) of the Alabama Rules of Civil Procedure, claiming that I had failed to state a claim for which relief could be granted. 
In an order dated December 5, 2003, Vance granted the Motion to Dismiss. I filed a Motion to Alter, Amend, or Vacate under Rule 59(e), but it was denied on January 5, 2004. The Alabama Court of Civil Appeals affirmed Vance's ruling, without an opinion, and the Alabama Supreme Court denied certiorari to hear the case.

With that as background, here is the crux of the matter--and it is absolute proof that Robert Vance Jr. does not respect the rule of law:
Here's the key to understanding how Vance cheated me: When you read in the newspaper about a lawsuit being dismissed, it almost always means that summary judgment has been granted, under Rule 56. (Note: Summary judgment is handled under Rule 56 in federal cases, too.) 
Summary judgment means that both parties have had an opportunity to conduct discovery, and one party or the other has shown that, based on the facts and the law presented, there is no reason for the case to go to trial. 
That is very different from a Motion to Dismiss under Rule 12(b)(6). Such a motion, if granted, cuts off a case before it even gets started. It claims that the plaintiff's complaint, on its face, is insufficient--and the case should be dismissed without any discovery being conducted. 
Most honest Alabama lawyers will tell you that filing a Rule 12(b)(6) motion is a waste of their time--and their client's money--because the motion almost never can be granted under the law. 
Why? Federal courts and most state courts, including Alabama, operate under a "notice pleading" rule. What does that mean? Here is one definition: 
[The] Federal Rules of Civil Procedure requires 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." 
To overcome a Rule 12(b)(6) motion, I only needed to give Evans and Odom notice of what the claim was and the grounds for supporting it. I met that burden with this one sentence in my complaint, under "Count One--Legal Malpractice": 
13. The actions and inactions of Defendants, as set forth in paragraphs 1 through 11 above, fall below that level of such reasonable care, skill and diligence that other similarly situated legal services providers in the same general line of practice as Defendants and in the same general locality ordinarily have and exercise in like cases. 
That one sentence, noting that I had set forth 11 paragraphs of facts to support my claim, was sufficient to overcome Evans and Odom's Motion to Dismiss. In all, I provided 12 pages worth of facts and law--when only one sentence was sufficient. And Vance still could not get it right!

That's a lot of detail on a legal issue that is simple, and it boils down to this: The bar to overcome a motion to dismiss is extremely low; you only have to give notice of a valid legal claim, and it must not be barred by the applicable statute of limitations or immunity issues. (Neither of those was a factor in my case.)
I gave notice that Evans and Odom were being sued for legal malpractice, and that clearly is a valid and recognized claim. I provided 12 pages of detail about the claim, going way beyond the standard set by law for overcoming a motion to dismiss.
Robert Vance Jr. is not stupid; he knew he was cheating me. He did not make a single citation to law in dismissing my case. That's because there is no law that supported his desired outcome. So he simply went rogue, seemingly without a conscience, because he did not want his fellow members of the legal tribe to be subjected to depositions and other forms of discovery.
I haven't written about Robert Vance Jr. in quite a while. But now he is seeking the highest judicial office in our state, and I know for a fact that he is singularly unqualified for it. Before voters mark their ballots in November, I want them to know how Vance Jr. actually conducts business in his courtroom.
I will provide copies of several key documents from my legal-malpractice case, along with explanations of relevant law, and they will show that Robert Vance Jr. does not deserve your vote.
He definitely will not be getting mine.
(To be continued)

Back to Featured Articles on Logo Paperblog