Evidence Rules and Trial Tactics in Bankruptcy Court

By: Jonathan L. Howell (Co-speaker)
State Bar of Texas Business Bankruptcy 101 Course
June 2, 2010

I. INTRODUCTION

This paper is a guide to general trial tactics and evidence rules in the context of proceedings under the Bankruptcy Code.1 In addition to the Federal Rules of Evidence, the series of statutes and rules governing discovery and evidence includes primarily the following sections of the Bankruptcy Code and Bankruptcy Rules2:

Section 341: Meetings of Creditors and Equity Security Holders
Rule 1001: Application of the Federal Rules of Bankruptcy Procedure and Federal Rules of Civil Procedure
Rule 2003: Meetings of Creditors and Equity Security Holders
Rule 2004: Examination
Rule 7030: Depositions upon Oral Examination
Rule 7031: Depositions upon Written Questions
Rule 7032: Use of Depositions in Adversary Proceedings
Rule 7033: Interrogatories to Parties
Rule 7034: Production of Documents and Things and Entry upon Land for Inspection and Other Purposes
Rule 7035: Physical and Mental Examination of Persons
Rule 7036: Requests for Admission
Rule 7037: Failure to Make Discovery; Sanctions
Rule 9017: Evidence

It is important to remember that different districts and even different judges within the same district have conflicting views on obtaining and presenting evidence and sometimes impose deadlines for the exchange of exhibits prior to contested matters and adversary proceedings. You should always consult the local rules, local standing orders and judges’ procedures to determine what additional requirements you must meet.

II. EXAMINATION OF WITNESSES AND USE OF TRANSCRIPT TESTIMONY IN COURT

Unlike most practice areas, bankruptcy law allows practitioners multiple opportunities to examine parties under oath in a bankruptcy case. Opportunities to examine parties under oath in a bankruptcy case may occur in several formats, both formal and informal, and during various phases of the bankruptcy case.

1The "Bankruptcy Code" or the "Code" means title 11 of the United States Code.
2"Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedures.

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