The Strategic Use of Experts and the "Stuff" They Rely Upon

By: Davor Rukavina (Co-speaker) and Russell L. Munsch (Co-speaker)
Presented at The University of Texas School of Law: Pre-Trial Bankruptcy Practices and Procedures Seminar
January 29-30, 2004

In many ways, the use of experts in the bankruptcy context is identical to the use of experts outside of bankruptcy. Nevertheless, the use of experts in bankruptcy involves certain legal and practical considerations different from other forms of litigation. For example, the fact that the vast majority of bankruptcy proceedings are tried to the bench rather than a jury, the accelerated timelines in bankruptcy, and the somewhat more common use of lay opinion testimony in bankruptcy proceedings.

Bankruptcy Rule 9017 makes the Federal Rules of Evidence applicable to cases under the Bankruptcy Code.1 This rule applies not only to adversary proceedings, but to all contested matters as well.2 Bankruptcy Rules 7026 and 7037, dealing with the disclosure of expert testimony, likewise apply in adversary proceedings and in contested matters.3 Given the applicability of the Federal Rules of Evidence and the Federal Rules of Civil Procedure, and, consequently, the requirements of both, no discussion of the strategic use of experts in bankruptcy can begin without a brief discussion of the general use of experts.

Part II and Part III of this article discuss the general requirements for the qualification and admission of expert testimony under the Federal Rules of Civil Procedure and the Federal Rules of Evidence, respectively. Where possible, this discussion focuses on the issues within the context of bankruptcy. Thereafter, Part IV of this article attempts to narrow the general into certain discrete and important issues that frequently arise with respect to the use of experts in bankruptcy.

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