Volume 20, Number 1
Bankruptcy Evidence Manual
By Barry Russell
Reviewed by William G. Schwab
"Counsel, can you cite me any authority for your objection?"
"There are cases that in-dicate...I'll supply it to the court later."
This is a common scene in bankruptcy proceedings. You know the judge is wrong, but you just can't put your finger on a cite dealing with a burden of proof issue or a rule of evidence, or cite any authority at the last minute. Evidence gets into the record that shouldn't. This affects how both the court and your client view you.
For those practicing in the bankruptcy arena even a few times a year, The Bankruptcy Evidence Manual by Judge Barry Russell may be the answer. The book is organized under the Federal Rules of Evidence and includes an index to the bankruptcy code as an appendix. The manual's format is basic yet very detailed. After a brief discussion of each rule of evidence, a discussion of various issues raised by the rule in a bankruptcy setting follows, with specific examples of evidentiary issues that could be raised. The manual provides the facts of a majority opinion case with the holding, followed by the rationale and case cite. Commentary is interspersed throughout. Minority authority follows, showing what other courts have done on the same issue, including the facts and ration-ales for those decisions. It gives you the ammunition to argue both sides of a particular issue.
The manual analyzes topics such as equitable estoppel, judicial estoppel, res judicata, privileges and presumptions, and collateral estoppel, along with parol evidence, witnesses, opinions, expert testimony, and hearsay. The section dealing with attorney- client privilege, for example, discusses the power of a Chapter 7 trustee to waive the privilege of a corporate debtor. It gives an outstanding analysis of CFTC v. Weintraub, 471 U.S. 343 (1985), which holds that a trustee may waive a corporate debtor's attorney-client privilege.
The manual, published by West Group, also discusses a trustee's power to waive the privilege of the individual debtor. Here there is a wide split of authority. Cases range from holdings that the trustee has no power to waive the individual debtor's privilege, to cases for which the trustee can waive privilege pre-petition, to cases with decisions falling between these two extremes. Another interesting section deals with presumptions and inferences. These include adverse inferences for the presumption of insolvency when a debtor's accountant is not called to testify, as well as what is needed to rebut the presumption when this occurs.
The author teaches at the Federal Judicial Center for newly appointed bankruptcy judges, and he seems to have used his experience to turn a difficult and generally unfocused topic into an organized, useful reference manual. Be aware, however, that for whatever reason, he does not include the bankruptcy practice rules, so this manual is not the only book a practitioner needs in the bankruptcy courtroom.
Since receiving the book, I've taken it with me on a regular basis into court. I have yet to be presented with an evidentiary question that was not readily and quickly found. Now my problem is that I also find the authorities the judge in my case is relying upon to rule against me.