CHAPTER 9 EVIDENCE AND PROCEDURE

• Jurisdiction: United States

CHAPTER 9 - EVIDENCE AND PROCEDURE

Evidence and procedure are sometimes considered less interesting than legal theory and analysis. The rules of evidence and procedure tell us how we must work through our legal issues, instead of why. It is critical that bankruptcy practitioners understand the rules so they can realize the best outcomes for their clients. Chapter 9 considers when a debtor may file an appeal as a matter of right, whether statements made under oath qualify as evidence, and whether the attorney/client privilege protects every privileged communication.

The Bankruptcy Code provides that a debtor may appeal the bankruptcy court's order as a matter of right, but only in certain instances. It is vital understand what orders are appealable and when. The Sixth Circuit recently provided a straight framework to determine when an order is appealable as of right, which may be persuasive in other circuits.

Motions for summary judgment may rely on evidence in the form of statements made under oath. But does the non-adversarial, informal nature of a 341 meeting or 2004 exam take away a creditor's ability to make statements in those circumstances? Is it enough that the statements were made under oath? At least one court rejected a creditor's use of a 341 transcript as evidence in a motion for...