David Gould’s Rules – From the Grand Old Man of Bankruptcy


(which are the result of 50 years of making mistakes  and learning from them)

1.         Remember, if you wish the court to do something for you/your client, give the court the admissible evidence and the law to support the request.  Speaking at the podium is not evidence!

2.         The more notice you give as far as time and the number of parties who receive the notice the more likely it will be that you will get what you request.  If all creditors received notice and had a month to think about it and no one objects, it is likely that the court will be willing to give you what you ask. If what you were seeking were not proper someone would likely file a pleading saying just that.

3.         The party having the burden takes the side closest to witness box or jury box.

4.         Assume that the microphones in the courtroom are on at all times and sometimes the judges while in chambers may hear what you say.  Don’t say anything that you would not be willing to say on the record at the podium. 

5.         Always rise and come to the podium when addressing the court.

6.          When addressing the court and you are asked a question by the court STOP what you are doing and answer the court’s question right then.  “I’ll get to that point in a minute” is not a winning strategy. The bankruptcy judge is helping you by letting you know what is bothering him/her.  Deal with it immediately.

7.         The “well” is sacred ground to the court.  Do not enter the well without first asking permission and the court granting it.

8.          Do not approach the witness stand without seeking and obtaining permission from the court.

9.         It is the court’s record so do not say “the record will reflect….” instead ask “may the record reflect….”  If the court wishes the record to so reflect, the court will so indicate.

10.       Don’t make excuses or even worse blame a younger lawyer or a support staff person or even worse,  court staff.   ” when you picked up that file it became your mistake.” If you make a mistake, own up to it.  It will not be the end of the world.

11.       Treat the courtroom staff with courtesy; no that is too narrow.  Treat everyone with courtesy.

12.       If the court asks you a question the answer to which really hurts your case, don’t blow smoke and try to avoid the issue.  A better response is “well, that may well be true but it should not be controlling because…..”

13.        Do not interrupt the court or opposing counsel.  Wait your turn, it will come.

14.       No smirking or head shaking concerning the witness’s testimony or your opponent’s arguments.

15.        Don’t assume that a published opinion from any court other than a decision by  your Circuit Court of Appeals (or the Supreme Court of course) is going to be controlling.  In fact, some bankruptcy judges believe that they are not bound to follow decisions of the BAP.  Better to argue that the reasoning of the BAP should be followed.  Even a decision of a fellow bankruptcy judge from the same district does not necessarily need be followed.

16.       Turn off your cellphone and iPad unless the court gives you permission to check your calendar.

17.        If you are ahead on points, shut up and sit down.  You don’t want the Judge to look at you and say “Counsel, I am inclined to rule in favor of your client.  Are you trying to get me to change my mind?”  For those courts which issue tentatives, READ THEM!

18.       No personal attacks on opposing counsel.

19.       The trier of fact is the most powerful position in our judicial system.  Never underestimate the power of the trier of fact when that person is making a record to sustain a ruling against your client.

20.       The United States Trustee is not your enemy.  It has a job to do and generally what they do  is not personal.  Seek the input of the analyst or trial attorney before filing a significant motion or proceeding.  Impress on your client the importance of staying in complete compliance with the Requirements of the UST.  File the operating reports and PAY THE FEES IN A TIMELY FASHION. 

21.       Your own personal credibility is the most important asset you will ever have.  No case or client is so important that you should ever risk losing your personal credibility.  If you are in a position that you cannot be completely 100% honest with the court and opposing counsel, you should fire the client and withdraw as counsel.  It may be a short term setback but in the long run you will be ahead.

22.        Judges get up in the morning, come to court and rule on matters.   It is not about you.  It is how they believe the merits require them to rule.  Understand that they have a job to do.  Your job as a lawyer is to make it as easy as possible for them to rule in favor of your client.  Don’t take an adverse ruling as a personal affront.  It is not.  Be objective.

23.       I have always believed that judges look across the well at the lawyers and ask them self “is this lawyer part of problem or part of the solution to the problem?”  If you are perceived as part of the solution you will have an easy time.  If you are perceived as being part of the problem, you will be in for rough sledding.

24.        Dress appropriately.  Courts do serious business.  Proper dress conveys the fact that you understand that fact.

25.       Read and follow the Local Rules.  They have been adopted to make the process work smoothly.  Check the court’s website to see if the particular judge hearing your matter has any special requirements.  If so, follow them to the letter.

26.       Do not forget that the Local Rules can be suspended or ignored by any of the individual bankruptcy judges in any matter or proceeding.  See Local Bankruptcy Rule 1001-1(d).  As a consequence, it is not helpful to assert that the bankruptcy judge is not following the Court’s own rules.

27.       It is not a winning strategy to argue that the bankruptcy judge must or must not rule in a particular manner.  Better to argue that the bankruptcy judge should or should not rule in a particular fashion for the following reasons.

28.        I believe that bankruptcy judges look out across the well at the lawyers and ask themselves “is this lawyer part of the problem or is this lawyer part of the solution.”  If you are perceived as part of the solution, the court will give you ample opportunity to solve the problem.  If, however, you are perceived by the court as part of the problem, you are in for some rough sledding.  Be a problem solver.

Leave a Reply

+ 1 = three