LJN Newsletters

Bankruptcy lawyers who rarely visit a courtroom may think they do not need to worry about the rules of evidence. Yet evidentiary rules can provide critical protections. In a typical case or negotiation, lawyers create and circulate tremendous amounts of information -- much of which would be potentially damaging if obtained by other parties. To protect this information, bankruptcy lawyers need to be familiar with the rules of evidence and how courts have interpreted these rules.

Members of official creditors' committees in Chapter 11 cases owe a fiduciary duty to the entire body of unsecured creditors. See Woods v. City National Bank, 312 U.S. 262, 268-69 (1941). As fiduciaries, committee members should have undivided loyalty to those they serve, free of any conflict of interest. Id. The imposition of such a broad duty to unsecured creditors generally might be otherwise unremarkable, except that committee members themselves obviously have significant selfish interests in the outcome of the bankruptcy case.

How does a bankruptcy professional get the court's attention on fees? Chief Bankruptcy Judge Mary F. Walrath of the District of Delaware answered the question with a detailed 33-page opinion on Dec. 23, 2003. In re Fleming Companies, Inc., et al, 2003 Bankr. LEXIS 1727 (Bankr. D. Del. 2003). Disposing of an objection by the United States Trustee to interim professional fee applications, Judge Walrath said she would "reduce the fees requested by the Debtors' professionals." Id. at 5. Not exactly the kind of attention any lawyer wants.

Recent rulings of importance to you and your practice.

A roundup of news items that may affect your practice.

Voir dire, or a preliminary cross-examination that takes place prior to the direct examination of an opposing expert's qualifications, is a useful, often under-appreciated, tool to preclude, limit, or discredit expert testimony. We addresses only evidentiary voir dire in this article, not Daubert/Frye hearings regarding the admissibility of scientific evidence.

A 70-year-old man was admitted to the hospital for a bowel resection. Following surgery, the patient's condition worsened considerably; He spent months in the ICU on a ventilator, was fed through a gastrostomy tube, and his mental status waned. After some time, it was suspected that his deteriorating condition might be related to sepsis from a bowel perforation. Subsequent surgery confirmed this diagnosis. Attempts to repair the perforation failed, and, ultimately the patient died. Medicare paid the patient's medical bills, which exceeded $500,000. The patient's family commenced a lawsuit, alleging that the surgeon's negligence caused the bowel perforation. During the litigation, the Medicare Trust Fund sent a correspondence to the patient's estate, asserting a claim of reimbursement for the benefits Medicare paid from any recovery that the estate might obtain.

Commencing Jan. 5, 2004, the civil branch of the Supreme Court of the State of New York, New York County, may permit attorneys to make certain court appearances by telephone in participating parts.