Bankruptcy Litigation Manual

Like bankruptcy practice and law in general, bankruptcy litigation encompasses almost all areas and disciplines of
the law. The <i>Bankruptcy Litigation Manual</i> serves up a concise and accurate summary of the substantive and
procedural aspects of most major areas in this complex arena. In addition to a detailed and easy-to-follow index, this
manual offers a succinct statistical review of bankruptcy business filings in its preface, then proceeds with an
in-depth review of the year's significant appellate decisions.

</p><p>In addition to the traditional areas of bankruptcy litigation, such as preferences, set-offs and fraudulent transfers,
this manual takes the bankruptcy litigator into the more troublesome areas, such as retiree benefits, environmental
and tax litigation. This manual is clearly slated for the commercial end of bankruptcy practice because its coverage,
although applicable to consumer litigation issues such as set-off, is designed primarily to assist the attorney with
the complex issues typically encountered in chapter 11 cases.

</p><p>Typical of its succinct explanations is this statement concerning termination of single-employer pension plans under
ERISA: "[S]ingle-employer pension plans may be terminated voluntarily" by the plan administrator, or
"involuntarily" by the PBGC. With ample reference to statutory authority and interpretive case law, the author
proceeds to set forth the methods of termination and the issues implicated in both chapter 7 and 11 cases. Likewise,
the manual's treatment of bankruptcy's "bread-and-butter" areas such as automatic stay litigation reflect a
straightforward and pragmatic approach to dealing with such critical areas such as the evaluation of collateral.

</p><p>As experienced lawyers rightfully expect, any litigation manual must cover the basic and fundamental areas of
concern such as discovery, privilege and appeals. This manual covers these areas in a thorough and comprehensive
manner, as illustrated by the areas of coverage in Chapter 3, "Bankruptcy Appellate Procedure." All aspects of an
appeal are covered and explained with updated citations. Even often overlooked or neglected issues such as
extensions, excusable neglect and stay issues are explained in a comprehensive fashion.

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[T]his manual...should be considered a must for every bankruptcy attorney.
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<p>My only comment or criticism of this excellent work is its failure to separately provide a chapter or detailed
coverage for evidentiary issues. Because Judge Barry Russell's evidence manual is considered the most authoritative
work in this area, this omission on a chapter dealing with specific evidentiary issues should not present a problem
for the seasoned litigator. Furthermore, key evidentiary issues, such as hearsay, are adequately discussed in specific
areas of the manual. Chapter 9, for example, which deals with preference litigation, discusses the means of
overcoming the hearsay objection (§9.35). Despite the increased importance of utilizing the various procedures
available under alternative dispute resolution (ADR), it would seem that a chapter dealing with the benefits and
approaches to the various types of ADR, such as mediation, would be a welcome addition. In light of the increased
litigation in most of the nation's bankruptcy courts, the thoughtful and timely employment of ADR is now and
will in the future constitute an inevitable and beneficial tool for every bankruptcy attorney. This is particularly true
in mega-chapter 11 cases where hundreds, if not thousands, of contested and adversary proceedings can bring a
court's docket to a standstill. By requiring mediation as a first step in the settlement process, many, if not most, of
these proceedings can be successfully negotiated and settled.

</p><p>Likewise, although there is no separate chapter dealing with specific issues of litigation strategy, the various
authors deal with advice on litigation strategy and related problems likely to be encountered. For example,
in Chapter 5, "The Automatic Stay and Adequate Protection," the author reviews and suggests tactics and
strategies for both the movant and the respondent (§§5.12 and 5.13). The advice provided is succinct, but
sound, as illustrated by this excerpt from Tactics and Strategies for the Movant:

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The passage of time is usually the movant's greatest enemy. As time lapses, post-petition interest, attorneys' fees
and other charges accrue to the over-secured creditor, and unless the collateral is appreciating in value, the equity
cushion, if any, is disappearing (§5.12, p. 5-83).
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<p>With these observations aside, and based on the experience, knowledge and reputation of the contributing authors,
all of whom are "household names" to the nation's bankruptcy community, this manual, published by Aspen Law
and Business and updated through the current year, should be considered a must for every bankruptcy attorney. This
manual clearly reflects the experience and acumen of its editor, ABImember <b>Michael L. Cook,</b> and the coverage
provided is yet another example of the background and experience of its many contributing authors, many of whom
are also ABImembers. The editor and these authors have made a lasting and valuable contribution to this area of
bankruptcy law. Every litigator would be well advised to keep this tome on hand and ready for "combat."

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