Question from old bankruptcy lawyer: Judge Jury, I’m pretty sure that declarations are a source of constant heartburn for judges. But I’m never sure myself of the best strategy in drafting a good declaration. I try hard to limit the declaration to just the facts ma’am, but sometimes the declaration looks skimpy and doesn’t tell much of a story. Do you have a recommendation on this? Inquiring minds want to know.
Response from Judge Meredith Jury (Ret): Only a bankruptcy lawyer could have asked the question the way it is phrased, but from 40 years ago the bk practitioners have used declarations totally improperly, even good firms continue the wayward practice.
A declaration is supposed to be admissible evidence. The same rules of evidence make it admissible as if the declarant was testifying orally. The purpose of a declaration is to present to the court facts within the personal knowledge of the declarant, for which a foundation can be laid and which do not contain hearsay or some other objectionable material. Somehow that concept has often gotten lost in the use of declarations in bankruptcy proceedings. It is not acceptable to take a motion or other pleading, which contains argument, opinions, conclusions, quotes from documents, and other materials and tack a “penalty of perjury” onto it and call it a declaration. Yet that is done over and over and for years in the bankruptcy courts. It is always wrong and the practice should be eliminated. The purpose of the declaration is not to tell “the whole story” of the motion or argument you wish to make to the court. That is what the motion or pleading does. The declaration is evidence in support of the motion and nothing more.
From www.bklawyers.org, cdcbaa Newsletter.
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