One of the original reasons for the creation of this column was to afford practitioners insight into how the practice looks from the vantage point of the persons charged with making the decisions. Recently Judge William Bodoh (N.D. Ohio) wrote a column about how to make sure you do not succeed in court. I'd like to offer the counterpoint to Judge Bodoh's excellent piece. Here, for what they may be worth to you, are a few things I've seen lawyers do that seem to work well in court.

It's a lift stay docket, populated mostly by mortgage companies and car lenders trying to retrieve their collateral from chapter 13 debtors. A mortgage lender's counsel presents a contested motion. The very fact that he's there making the presentation has my attention, because he's already established a reputation for working things out if at all possible. Every lawyer knows the importance of building credibility with the court, but not every lawyer remembers that settling cases is one of the best ways to achieve that goal.

When lender's counsel concludes his presentation,¹ debtor's counsel responds. The lawyer has his clients with him, so that proferred testimony can be cross-examined if need be, and also so that the matter is "personalized" for the court (here are the real human beings who might lose their house today). The lawyer presents his clients' position in a straightforward fashion, careful to acknowledge the defaults, but equally careful to explain the reasons for the defaults (that's a matter of good faith) and the reasons why the lender and debtor were unable to settle the matter—after all, the judge will be asking that question mentally anyway. The lawyer usually has to rely on a combination of an appeal to equity and a demonstration of feasibility.

If the parties had been able to settle the matter, it's clear that they would have, from this sort of presentation. I have to rule, and do so. And here again, the lawyers demonstrate their professional approach to their practice. They don't whine. Both attorneys have thus maintained their credibility with the court, to the advantage of their next clients. Simple, right?

A relatively small chapter 11 case is set for a disclosure statement hearing. There is an objection by the U.S. Trustee. It details specific problems relating to such items as inconsistencies between the pro forma projections and the monthly operating reports, or insufficient financial data to back up the projections, or failure to address executory contracts. If the case is one requiring an infusion of new capital, or one calling for the discharge of a third party, the objection highlights that fact and notes whether the disclosure statement has "red-flagged" these items for the benefit of creditors. Usually, the objection results in amendments to the disclosure statement without the need for a contested hearing, and over time, the quality of the disclosure statements has improved. The objections are not shotgun—they are specific. And judgment has been exercised as to what to raise an objection. The overall effort is good lawyering by the U.S. Trustee, and ends up both helping the court and improving the system.

A complicated case involving federal regulations from another part of the U.S. Code has landed in bankruptcy court. A hearing is being conducted that requires the court to work through "virgin territory" of the law. Counsel will need to make what amounts to a summary judgment presentation, weaving together the law and the facts. To make the task easier for the court, the lawyer has prepared some "blow-ups" using foamcore white board, in print large enough to read from at least 20 feet. The lawyer has also prepared a notebook, with a table of contents and tabs for the exhibits. Every one of the foamcore exhibits is also reproduced in the notebook. The lawyer makes his presentation, as though he were presenting it to a jury. He knows that he must use the same organization, the same clarity (outlining his argument, naming the parts, and repeating each part's "title" as he comes to it) as he would for a jury. Smart lawyer. In virgin territory, the judge appreciates being "led." Nice job.

A hearing on objections to exemptions will require the court to resolve a legal issue—or perhaps to make some new law (a common enough occurrence in the area of exemptions). Each lawyer makes its presentation, arguing from stipulated facts. Both lawyers cite cases, and both lawyers have furnished a booklet of those cases to the court. The parts of the cases upon which they rely has been highlighted (each gave the other a duplicate set of what they handed the court, with the same highlighting). Each acknowledges the potential weak spots in their arguments, but does not try to gloss them over. When the court asks them questions, they do not try to evade. They answer the question, then segue to a counterpoint to soften the force of the judge's question (yes, of course, the questions have force). Neither argues logically frivolous positions. What a joy!

A large, complicated case has pages of items on the docket. The attorneys have conferred in advance, and one of them has prepared a proposed agenda for how and in what order to proceed. The docket is prepared by clerk's staff, who are not expected to understand the implications that deciding one matter might have for another matter on that docket. The attorneys recognize this and have anticipated the problem with their agenda.

On that same docket, debtor's counsel (assuming a chapter 11 case) has his client available to afford the court a status report, if the judge wants one. Some (though not all) courts prefer to have a sense of where the case is going, and they would rather have that from someone other than the lawyer or the accountant. I happen to be one of those judges. The status report is, of course, offered under oath. Sometimes, the client will bring financial information with him or her, in a format available for the court, with the permission of other interested parties, of course.

An issue arises upon which the circuit has just ruled in the past week. Counsel refers to the case, and has a copy for the court. Trust me, the court is not insulted. Maybe the judge has read it already, but maybe not. A copy is always appreciated.

An adversary proceeding has produced a motion to dismiss, which the judge is delighted to see is accompanied by a memorandum of authorities. What is even more delightful is that the cases are on point, stand for the propositions for which they have been cited, and have not been reversed (or questioned by either the circuit or the Supreme Court). To top it off, the motion is rationally argued, seeming to lead to an inevitable result. And the whole thing is not that long either.

Most lawyers I see are good lawyers. They know these things. What is more, they learn from one another. It makes the whole process that much more enjoyable. Unfortunately, I suspect that the lawyers who might not be so good are also lawyers who are not reading this column. Ah, well.

Have you seen some really nice techniques that you think ought to be emulated? You probably have. If so, drop me an e-mail at [email protected] and tell me about it. We'll reprint the best of them in the coming months (while we wait to see what Congress is going to do about bankruptcy legislation). Also, in coming months, I'd like to highlight (from this judge's perspective) some of the good things that other bankruptcy professionals do. If you've got some good examples, pass them along.

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Footnotes

¹ In the Western District of Texas, the creditor's presentation is simplified by a local rule that makes allegations in the motion deemed established unless contested—and Rule 9011 is employed to prevent frivolous contests. Return to article