by Richard Prior
Staff Writer
The message that came out of last month’s luncheon meeting of the Jacksonville Bankruptcy Bar Association was . . . there’s not a lot of humor in bankruptcy.
U.S. District Judge Timothy Corrigan was invited to discuss bankruptcy appeals and pointed out that he usually likes to warm the audience up “with a little bit of humor if I can.”
“So I thought, what’s funny about bankruptcy?” he said. “I thought, and I thought. I had nothing.”
With apologies to David Letterman, Corrigan suggested 10 things his listeners should know about bankruptcy appeals.
• Although briefs have to stand on their own, he said, attorneys who are dealing with a novel issue or a “first impression” issue should ask to be heard in oral argument.
• Remember that district judges in a bankruptcy issue are sitting in an appeal capacity. They’re not there to second-guess the bankruptcy judge.
• If the appeal depends on a contention that the bankruptcy judge “clearly erred,” the attorney needs to say so.
• Make sure you’re appealing the right order.
• Be sure to submit all the documents that the district court needs to understand the appeal and consider it.
• Don’t submit new material that isn’t part of the original record.
• If briefs were filed below, or there was a lot of discussion that’s now up on bankruptcy appeal, give the appeal court the briefs and transcript that were filed. The appellate court can’t consider, “in most cases,” arguments that weren’t made below.
• Don’t forget to include citations with the briefs.
• Limit the number of issues to those that have merit. “Longer is not necessarily better.”
The No. 1 tip, Corrigan said, is to make sure the appeal is worth the time, effort and money that it’s going to cost.
The remand and reversal rates are “pretty low” because it’s presumed that the courts below have done their jobs, he said.
“That doesn’t mean there won’t be reversals in appropriate cases,” Corrigan added. “There will be.
“But make sure you’re not just trying to get a second look at this without any appellate issue being there. That’s just not going to be a good use of your time or your client’s resources.”
Even if an attorney feels the ruling is incorrect that doesn’t mean it should automatically be appealed, he said.
“Make sure it’s important enough to bring it up. There are some rulings you just live with, even though you didn’t like them. They don’t really hurt you that badly, and maybe you should just move on.
“Any time you think about taking an appeal, really think about it and make sure it’s the necessary, right and good thing to do. It costs a lot of money. It can take some time. And it does delay things.”