December 03, 2014 Articles

Testimony by Proffer in Bankruptcy Court

Learn the allowances, advantages, and pitfalls of this trial technique.

By Joseph C. Barsalona II

Contested bankruptcy matters are often complex and involve multiple witnesses and potentially lengthy hearings. These hearings resemble mini-trials and often take place within a month or less from the filing of the motion. Even uncontested matters will require an adequate record to support your motion. Presenting the proper evidence to support your motion in the most effective and efficient manner is an important consideration for all trial counsel. There is also a fine line to navigate between presenting too much evidence and just enough to prevail at the hearing. Preparing fact witnesses for hearings can be a costly financial burden on the bankruptcy estate. Other than putting on testimony with a direct examination of a live witness, in some circumstances, counsel should consider utilizing the attorney proffer of witness testimony in their case in chief. This article provides an introduction to the technique of an attorney proffer of evidence in bankruptcy court, the rules related thereto, and practical considerations.

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