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Practice Pointers for Working with Expert Witnesses in Bankruptcy Court

By Christopher R. Harris and H. Gregory Baker
May 29, 2012

Litigators are called upon to participate in bankruptcy proceedings in a variety of ways, including frequently to prepare for and conduct hearings. As in any court, such hearings provide parties the opportunity to introduce evidence, including expert testimony, to enable the court to resolve issues of fact.

While similar in many respects to any other litigation, there are some important nuances of bankruptcy court practice to be mindful of, especially when working with expert witnesses. A few factors that may distinguish bankruptcy court litigation are:

  • The lack of juries ' bankruptcy judges are the sole fact-finder, and tend to possess a great deal of experience and sophistication, particularly regarding complex commercial and financial matters;
  • The speed of bankruptcy proceedings relative to disputes in many other courts; and
  • The fact that the customary federal privilege protections afforded to expert witness communications and work product may not always be available in bankruptcy court.

This article provides some examples of how expert witnesses are used in bankruptcy court, and an overview of some issues that practitioners should be mindful of when working with experts in bankruptcy court.

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