Along the pathway to my second career of legal historian, I have enjoyed the benefit of several mentors' guidance and influence. Some were historians and others were bankruptcy judges or lawyers. One of those who was both a judge and a lawyer was Bill H. Brister, who died in Dallas on May 17, 2022, at age 92.
Very early in my law practice, a partner of my first law firm, in Amarillo, came to my office and tossed a pamphlet onto my desk. He said in a serious tone: "It appears Congress has revised the bankruptcy laws. Take a look and see what you think about it." The pamphlet was the Bankruptcy Code (title 11 of the United States Code) that became effective October 1, 1979, after enactment by Congress a year earlier. I opened the pamphlet and, having not taken the course in bankruptcy law at UT Law School, the words of the new statute did not make much sense to me.
But soon the Texas economy cratered as the recession, or really a depression, of the eighties rolled across the agricultural, petroleum, banking and commercial real estate sectors with severe effects. For instance, nineteen of the twenty largest Texas banks failed. The regional bank that my firm was representing suddenly began to have commercial, agricultural, and corporate borrowers seeking refuge under Chapter 11, the business reorganization provisions of the new bankruptcy law, and it called me to represent the bank in such cases. And the bankruptcy judge was Bill Brister.
I worked to climb the learning curve, but it took time to parse opaque statutory provisions such as section 547 on preferential transfers and to understand what a plan is; learning by doing, being involved in bankruptcy cases with Bill Brister as the bankruptcy judge, helped a lot. In one significant case of a cattle wheeler-dealer, my bank client sent me to court to find out what was going on. The creditors were clamoring for a trustee, early in the case, but Judge Brister forged a middle way by appointing an examiner and endowing him with expanded powers almost equivalent to a trustee's. I remember in that hearing, at which many Dallas bankruptcy lawyers were present, listening as the examiner's counsel addressed Judge Brister from the podium about "adequate protection including the indubitable equivalent" for this secured creditor and speculating that another secured creditor could take "the 1111(b) election." I decided that, while I did not understand what he was saying, bankruptcy would be the practice for me!
In other cases, representing the bank with its secured claims, Bill often declined my motions for relief from the automatic stay, wisely but aggravatingly giving the debtor "a chance to confirm a plan." From Judge Brister I learned a lot about the nature of bankruptcy process including the element of equity. He frequently declined my motions, but always in a gentle, didactic way; but once when I represented an octogenarian widow on a motion to lift stay so she could foreclose out the deadbeat mortgagor of some ranchland--a most deserving secured creditor--he easily granted the relief!
Bill was appointed as bankruptcy judge for the Lubbock and Amarillo Divisions of the Northern District of Texas in late 1978 after service as a U.S. Magistrate and before that civil rights lawyer. I appeared before him from 1980 or 1981 to 1985. On September 1st that latter year, he resigned from the bench and joined the Winstead Law Firm in Dallas. Three months later, my wife and I decided to relocate to Austin and in connection with a job interview, a law firm there informed me that its strict policy was to receive a written reference "from someone who knows your practice very well" before coming for an interview. I was in quandary because I did not want any of my then partners to know I was "looking around." But I thought of Judge Brister, now off the bench and in private practice in Dallas, so I rang him to ask the favor. He replied that he would be happy to give a recommendation, "but you must come interview with us [Winstead] too."
That's how my family and I got to Dallas. I joined Winstead on April 1, 1986, and the rest is history: Winstead 1986-1999 and Vinson & Elkins 1999-2017, all as a bankruptcy lawyer based in Dallas, and all because Bill Brister was so supportive of me. He was an exemplary bankruptcy lawyer with a broad range of clients that included an insolvent former congressman, big ranchers, small towns, broke real estate developers, oil and gas promoters, and worthy individuals flocking to him for bankruptcy counseling, workout negotiations, and case representation.
Bill was a bankruptcy judge in years of the first judicial fleshings out of the sparse, enigmatic terms of the Bankruptcy Code's sections, not only in reorganization cases but individual cases as well. A number of his decisions were appealed to the Fifth Circuit where he enjoyed a high affirmance rate, thus spreading the effect of his rulings and raising his stature. A couple that come to mind are In re Missionary Baptist Foundation of America and In re Brints Cotton Marketing. Over the years I kept a list of his reported decisions, and I am going to dig it out.
I retired from the practice of bankruptcy law more than four years ago, and as I have gained more perspective on those years of representing clients in bankruptcy courts, I have come to realize how much I learned from Judge Brister in those cases in which I had appeared before him as judge. He always had the most gracious smile on his face, even as he handled bitter and strongly contested cases--by definition, there is "never enough to go around" in bankruptcy--and he used his bench as a tool to educate all of the lawyers before him in the intricacies of the law--for instance, the disclosure statement for a plan does not have to include a valuation of the debtor, he taught me--and in the necessity for civility among the lawyers, always administered with a gentle, graceful hand.
I will miss you Bill. Thank you for being one of my mentors.
