Bankruptcy Litigation

This session will use a common fact pattern and feature demonstrations of arguments and examinations regarding such evidentiary issues as whether a witness may appear by telephone, video or deposition; admissibility of expert testimony on value; whether an expert may rely on the testimony of other experts; when lay witness testimony on value may be admissible; and demonstrations of examinations of experts and nonexperts regarding valuation and other common issues that arise in evidentiary hearings. By extensively using role play, this session will create real settings for consumer bankruptcy attorneys to help them handle evidentiary hearings in bankruptcy court.

Considering an appeal? Learn some practical tips and considerations from this panel of experts and judges.

FDCPA, FCRA, TILA, RESPA, so many letters, so little time. This panel will discuss the litany of statutes designed to protect the consumer that all practitioners that work in the consumer space should be aware of.

This panel will discuss the best practices for drafting motions and briefs and presenting those filings to the court when they are contested and uncontested. The panelists also will discuss the pitfalls to avoid when drafting motions and briefs and presenting those pleadings to the court.

Challenging an expert witness requires more than just wondering what questions to ask on cross-examination. Is the expert witness even an expert in the right subject matter? Should the expert be deposed before trial and challenged before he or she takes the stand, or would cross-examination without giving the expert the clues that come with deposition questions present the best opportunity to defuse the weight of the expert’s opinion? How can the trial lawyer prepare for cross-examination of an expert and contain the damage done on direct examination of the expert? What are the essential attributes of strong cross-examination, and how should the trial lawyer deliver the most effective and forceful cross? What are the most effective cross-examination strategies for impugning and impeaching an expert’s opinion? This panel will discuss the legal, strategic and practical considerations that arise in preparing and delivering effective cross-examination, followed by experienced trial lawyers demonstrating techniques for effective containment and impeachment of expert opinion and testimony — with an experienced judge letting them know in real time whether they succeeded.

Poker players look for tells. Polygraphs measure physiological indicators. Movies suggest that there is some magic to looking somebody in the eye. In court, though, judges and lawyers are left to their own devices to determine whether a witness is lying. A clinical psychologist and a former attorney general of the Commonwealth of Massachusetts will join experienced trial lawyers and judges to discuss lying and the limits of detecting lying, including verbal and nonverbal cues that aid in assessing the credibility of statements.

How to keep your equity when those about you are losing theirs (and blaming it on you).

This panel discussion will concentrate on issues commonly encountered when a closely held business and its individual owners and related businesses have financial problems, including regarding application of the absolute priority rule/new value exception to individual chapter 11 bankruptcies, conflicts, corporate governance, substantive/procedural consolidation and compensation issues

This panel will present a fraudulent transfer update and discussion regarding the split over § 546(e) safe harbors (Physiotherapy, Tribune, Madoff, Meritt Management), 10-year reach-back periods (Kipnis), the reinstatement of unsecured creditors’ intentional fraudulent conveyance claims and the ruling that the intent of the CEO can be imputed to the company (Lyondell), the finding that substantive consolidation does not augment the trustee’s § 544(b) avoiding powers by allowing the trustee to rely on predicate creditors from another estate (Petters), and the ruling that access to a credit line rebuts unreasonably small capital claims (SemCrude). The session will also feature an update on the Trust Indenture Act, including discussion of the recent Second Circuit decision in Chesapeake Energy and its implications regarding the finality of bankruptcy court orders, and an update on the litigation of feasibility issues (Paragon).

Often the hardest part about bankruptcy litigation is making the decision to take it on in the first place, considering the time, expense, available resources and anticipated benefit to the estate and its constituents. Many bankruptcy attorneys often divorce litigation from the business goals of the client, resulting in disproportionately high fees, disappointed clients and unpaid professionals. Too little time and effort is undertaken before and during the early stages of litigation to consider the foregoing and client objectives. Consequently, in most cases litigation must be viewed as a business decision. This panel will discuss these important issues and take the audience down the litigation and settlement road: (1) pre-filing the complaint; (2) early disclosures to opponents; (3) early motions; (4) discovery and discovery disputes; (5) pre-trial motions (e.g., motions for summary judgment); and finally (6) trial. The tactics and strategies often used during these steps to promote or advance settlements that best favor clients will also be addressed.