Practical Advice for Appearing in Very Busy Bankruptcy Courts
by Judge Harlin D. “Cooter” Hale
The local bankruptcy courts, and frankly all divisions of Texas and most across the country, are swamped. Filings have now reached record numbers and the courts are experiencing extraordinary courtroom time.
This article provides practical suggestions for appearing in bankruptcy court in times when dockets are full and courtroom time is limited.
1. Familiarize yourself with the court’s calendar. There are three bankruptcy judges in Dallas. We all set our routine matters on different days to accommodate the bar. Make sure you know when your judge hears motions to lift stay (our most common motion) and Chapter 13 cases (the most frequently filed bankruptcy case).
2. Look at our website (www.txnb.uscourts.gov). The bankruptcy court website is terrific. One can find form pleadings, issued rulings, local rules and judge-specific requirements. For example, the website will tell you whom to contact for settings and how to do so.
3. We are high-tech. Our rules require electronic filing. And, except for long pleadings, such as motions for summary judgment and plans and disclosure statements, we generally do not receive paper copies. The judges usually do not sign orders manually. In other words, you don’t need to bring an order to the hearing. We will want it uploaded through our order processing system. Also, we have very nice equipment in our courtrooms allowing for persuasive presentations of evidence. Ahead of your court date, you might want to make arrangements to come over and practice.
4. Consider negative notice. Many matters can be resolved on negative notice. Look at the local rules. For those matters, just file your motion, notice it out properly and wait for objections. If none are received, upload a certificate of no objection and your motion should be granted without a hearing.
5. Consider self-calendaring. We let the inmates run the asylum, as far as many settings go. Our local rules allow for the setting of certain motions, which will take 30 minutes or less, on our self-calendar dockets. Check the website and local rules and consider setting the matter at a time convenient to you and your client.
6. We allow telephone and video hearings. The rules and website tell you how to arrange a telephone or video appearance. The court will allow both upon proper request and under the right circumstances.
7. Keep your pleadings short. Your motion does not have to be a current version of Gone with the Wind. We hear repeated motions in most of our cases. The judges know the basics and the statutes. Tell us what happened and why you should win.
8. Exchange witness and exhibit lists timely. The rules provide deadlines for the exchange of witness and exhibit lists. Don’t blow those times or you may not be able to put on your case.
9. Think about proffers. In the undersigned’s experience as a lawyer, proffers help one make a more complete record. The judges generally will allow proffers of direct testimony, so long as the witness is in the courtroom and available for cross-examination. Let the other side know you intend to proffer and most of the time direct testimony can come in this way.
10. Keep your argument focused. Remember that virtually all bankruptcy matters are tried by judges, not juries. Usually, the judge and the law clerk have read your papers and discussed your matter before the hearing. Often, there is no need to make extensive opening arguments, especially those which repeat your pleadings.
11. Consider Findings and Conclusions. Supply the court with a roadmap before the hearing and revise it to comport with the trial after the hearing. Make it easy for the judge to rule in your favor.
12. Ask—we are user-friendly. The bankruptcy court and clerk’s office try to be helpful. If you have a question, call or email the clerk’s office. Often, a good place to start is the judge’s courtroom deputy. If the answer lies more properly with the court’s chambers, someone will find out the answer and tell you.
In the words of my grandmother, “We are busier than the Lord intended us to be.” At least, this is true in the bankruptcy world these days. Hopefully, the suggestions above will help you get your bankruptcy matter filed, set and heard in an efficient manner.
Judge Hale became a Bankruptcy Judge in November 2002. He can be reached at email@example.com.