 Federal Judicial Center Orientation Series for United States Bankruptcy Judges Principles of Calendar Management with the Honorable J. Wendell Roberts, Chief Bankruptcy Judge for the Western District of Kentucky Judge Roberts was appointed to the court in 1987. He received his BA degree from Eastern Kentucky University in 1964 and his JD from the University of Kentucky College of Law in 1966. The Western District of Kentucky has three authorized bankruptcy judges who sit in Louisville. They also hear cases at several other locations in the state. The United States Bankruptcy Court for the Western District of Kentucky is headquartered in Louisville, Kentucky and has divisional offices in Owensboro, Paducah, and Bowling Green. Its sole purpose is to serve the parties that come before it. It is not, therefore, a Judge Roberts Court or a Judge Dickinson Court or a Judge Dossberg Court. It's THE court. And I would emphasize that each person who works here, from the judges to the intake clerk to the copy person, is important and must work in unity to properly serve the litigants. So how can you best structure your calendar to serve them? Our philosophy is the proper resolution of conflicts as the best service we can render. We can best do this by cooperation, offering an opportunity to settle, and by adhering to reasonable time limits. You're a judge now, so with whom do you really need to be cooperative? If you serve in a multi-judge district, I would first suggest you need to be cooperative with your colleagues. The judges should meet frequently to discuss ways of reaching consistency and uniformity among them. In our district, we have worked hard at being consistent and uniform where possible. In fact, about the only matter that we haven't reached in accord in is in the coffee we drink, and I take a stronger position with regard to coffee. We routinely sign orders for each other. When you're holding court out of town or you're taking a few days off, the lawyers continue to send in motions. These motions deserve a proper ruling. By signing orders for each other, we eliminate the stacks of files for review when we return to office. And when a judge to whom the case is assigned can't hear the parties as quickly as desirable, one of the other judges in the court will hear the matter for him. Now it's easy to get accustomed to this when you adopt the theory that the case is the court's case, not my case. Another way we cooperate is in reaching our written decisions. Although it may not be practical in a large court, we circulate our written decisions to the other judges and staff attorneys for review. The three of us have been highly fortunate to have enticed high quality practitioners as career law clerks, so we refer to these people as staff attorneys because we think the term law clerk doesn't reflect for contribution to the court. In any event, each of the staff attorneys and judges critique the opinion. We want to be sure that we are correct and that the other judges will follow the decision. The best way to encourage forum shopping by lawyers is for a colleague to refuse to follow the decisions. So it's critical that a judge in a multi-judge district agree to follow these opinions, reached by majority vote, even if it conflicts with their own personal ideas. Who else should a judge drive to be cooperative with? How about the clerk of the court? It'd be easy for a judge, and particularly a new judge, to become so accustomed to everyone calling him or her judge and almost jumping at any command issued by the judge to begin to think that you are more important than the other people with whom you work. Don't fall into this trap if you intend to be happy in your job very long because you'll rise and fall like a one-egg custard. Work hard at keeping your ego in check. Each person in the clerk's office is just as important to the operation of the system as you, the judge, are. Because of budgetary reasons, our clerk's office shrank from 45 people to 36 in one year's time. Now just imagine how much more difficult the operation of that office would have been if the three judges in our district had separate procedures relative to motions, hearings, and trials. Perhaps one of the more innovative elements of our cooperation with the clerk's office and yet one of the simplest innovations I can think of is a common signing table. Our signing table is located in the corner of the clerk's office. Our files are segregated and stacked on the table for our review when we have time. A short walk for each of the judges from our respective offices to the signing table saves so many hours of clerk's time over the course of a year and trucking all the files up and down the hall to our chambers. The common signing table also has great benefit for the judges. Just outside the door are the workstations of all the case administrators. It's so easy if the judge has a question about a file to merely step outside the office and ask the case administrator responsible for that particular file. This location also gives the judge and the deputies the opportunity to get to know each other. It shows the deputies they are really an integral part of the bankruptcy court. By having all the files on the same table, it's very easy for one judge to sign another judge's orders. A final benefit of the signing table to the judge is that his or her office doesn't become cluttered with all the files that flow through the system on a daily basis. Cooperation with the United States trustee is important to your calendar management. That office can be of great assistance in moving your cases and resolving problems. Bankruptcy Rule 9003B allows communications between the court and the United States trustee to discuss general problems of administration and improvement of the system. Finally, you should be cooperative with the bar. The lawyers can make your life happy or very miserable. You might consider establishing a court liaison committee composed of lawyers and U.S. trustee. This is a good way of learning the fears and the problems of the bar and the court. True honesty in these meetings will benefit both. The next area of calendar management I'd like to discuss is giving the parties an opportunity to reach an agreement among themselves. Of course, not all matters should be settled. For instance, if a crook gets caught with his hand in a cookie jar, you may really want to try that 727 action. Our court requires each person filing a motion to tender a proposed order. Occasionally an order will not accompany the motion or the motion may be deficient in some other way. An example would be if the motion refers to exhibits being attached and there are in fact no exhibits. It would be a waste of everyone's time to schedule such a motion for a hearing. Through the cooperative efforts of the clerk and the judges, we developed a document entitled Memorandum of Noncompliance, which for clerk routinely returns to the person filing the motion. It highlights the deficiency and gives 7 days for curing it. It's great assistance in moving matters timely without taking precious calendar time. It's also a good teaching mechanism for new or inexperienced attorneys. Motions to terminate, modify, annul, or condition to stay occupy an inordinate amount of calendar time in some jurisdictions. Once, while assisting colleagues in another circuit, I was handed a 27-page docket. The entire docket was composed of motions to terminate the stay. No opportunity had been given but data to respond to the motion as all motions were routinely set for hearing. I was momentarily overwhelmed by the number of pages, but upon taking the bench, I soon learned that the lawyers were eager to tender agreed orders. Why should clients occur additional legal expense by paying an attorney to appear in court on a routine motion to terminate the stay when the parties are agreeable to working out the matter? In most jurisdictions, Chapter 7 cases represent the overwhelming number of cases. Motions to terminate the stay probably represent an overwhelming number of motions in Chapter 7 cases. Our clerk's office sends out a notice for objection to the debtor, the debtor's counsel, the trustee, and the attorney for the movement on every motion to terminate the stay in Chapter 7 case. This is done routinely and the judge never sees the motion until the end of the 15 days allowed for objections. If no objection is filed, the file would be placed on the judge's table for a judge's signature on the order terminating the stay. Only if an objection is filed is the matter set for a hearing. And I might add this is done by the clerk without the judge ever seeing the file. We experimented with the same procedure in Chapters 11, 12, and 13, but we found that those debtors would oppose virtually every motion to terminate the stay. Therefore, the clerk automatically sets motions to terminate the stay for hearings in Chapters 11, 12, and 13. Occasionally, I've heard speakers single out a particular motion or pleading as being a very powerful weapon in their arsenal. Well, a judge engaging in calendar management finds a very powerful weapon in 11 USC, Section 1021. That section of the code provides that the words after notice in a hearing or any similar phrase means notice and opportunity for a hearing. It authorizes an act without an actual hearing if notice was given and if the hearing is not requested timely by a party in interest. If you really feel your job requires you to sit on the bench hour after hour, day after day, then disregard Section 1021 and merely set every motion that comes in for a hearing. Unless you view your job in that light, I would urge you to consider sending out notice of most motions to the interested parties, giving them the opportunity to object. If an objection is filed, then the matter can be set for a hearing. On the other hand, if no objection is filed, the judge can review the motion and if the relief is proper, the order can be signed. Examples of motions that we give interested parties an opportunity to object to are as follows. Applications for employment of professionals, applications for compensation, applications for allowance of administrative expense, motions to consolidate, motions to sell property, motions to redeem property, motions to avoid lend, motions to enlarge time for filing adversary proceedings, agreed motions for use of cash collateral. Some motions, such as motions to dismiss filed by a creditor in all cases and by the debtor in Chapter 7 and 11, motions to terminate the stay in Chapters 11, 12, and 13, motions for hardship discharge in Chapter 13, objections to claims, and show cause for failure to obey a court order, including the non-compliance memos mentioned above, should, by the very nature, be set for hearing. How will you structure your calendar to conduct these hearings? In establishing your trial and other court calendar, it's important to consider not only the attorneys who practice in the courts, but also the courtroom deputies from the clerk's office and the court reporter. Remember, each time you call a court reporter to court, even for only five minutes, the court must pay for at least one-half day of that court reporter's time. Because of these reasons, as well as for your own convenience, you should consider setting your courtroom time in blocks of one-half day. Many of you also serve in an outlying location. In a faulty judge court, you should travel on an alternating schedule so that at least one judge is always at the primary place of holding court. I think judges traveling to an out-of-town court should establish these dates first and then structure the primary calendar around these periods. I'm firmly convinced that lawyers in the outlying locations have the right to see a judge more often than once a month. Important matters can arise that cause an undue hardship if a judge visits only on a monthly basis. Therefore, I prefer to make the trip twice a month. Every court, of course, will be different in that some judges never serve outside the home office, while other judges may travel several hundreds of miles. As you can see from the calendar, I travel the second and fourth week of each month to Paducah. I recommend reserving one out-of-town day for motions with the remaining three days being used primarily for evidentiary hearings and trials. I reserve the first trip of each month and the first day of the second trip for these evidentiary hearings and trials, holding the motions until the last day. Frequently, all trial matters will settle, and this will free a day to review the motion files for the final day. My docket days in Louisville are primarily Tuesdays, Thursdays, and Fridays. Again, it's important for the judges to confer so as to avoid setting the motion day for the same day. Obviously, a lawyer can't be in two different courtrooms at the same time, so this is an important consideration to bear in mind in establishing your calendar days. When I first came to the bench, each motion that was scheduled for a hearing was given a designated time. With the first hearing beginning at 9 a.m., perhaps the next hearing was at 9.10, then 9.20, then 9.30. I soon found this method lacked efficiency as I was continually leaving the bench for a few minutes and then returning for short hearings. It didn't take long to abandon this procedure in favor of setting a block of motions on the 9.30 docket and another block at 10.30. My colleagues and I prefer to block similar motions at the same time, and over time you'll learn to estimate the number of motions you can hear in an hour. For instance, we wouldn't want to schedule more than three or four hearings in Chapter 11 disclosure statements for a one-hour block, but on the other hand you can hear 15 to 20 routine stay motions during that same one-hour time. A hearing on the confirmation of a plan in a Chapter 11 case can usually be concluded in 15 to 30 minutes if the plan has been accepted by the vote of the classes. If the cram down is necessary, we will set it for hearing at a later date, usually on the afternoon of motion day, and allocate the appropriate length of time that the attorneys feel the matter will take. Fridays are reserved for pretrial conferences. I prefer to conduct them telephonically as I view this as one other way litigants can save money while the case is proceeding through the court. I usually schedule six to eight pretrials per hour, and I give the parties a firm trial date while we're on the telephone. My two colleagues and I share the same philosophy that a judge should take an active hand in moving the case along. Our clerk sends a scheduling order to the plaintiff's attorney along with the summons immediately after the adversary proceeding is filed. The plaintiff's lawyer then serves the summons and the scheduling order at the same time. You will note the very first thing in the order is the scheduling of a telephonic pretrial conference. The scheduling order also directs the parties to meet and confer within 15 days after the answer is filed. We were requiring this even prior to the adoption of bankruptcy rule 7026F, but that rule now gives specific authority for this procedure. Ten days after the settlement conference report, the parties are directed to complete and sign bankruptcy rule 7026A disclosures. Finally, the parties are given 45 days after the filing of an answer to complete all discovery. In the vast majority of routine adversary proceedings, 45 days is enough. This tight scheduling never allows an adversary proceeding to be placed on the back burner by a lawyer. Their clients' rights are important, and it should be adjudicated properly. During the pretrial conference, we give the parties a trial date certain that will usually be within one to two months from the date of the conference. In this way, an adversary proceeding can finally be adjudicated within five months from the filing date. A look at the number of adversary proceedings filed nationwide per year in relation to the number of cases under all chapters nationwide each year will tell you that you should expect to have about 79 adversary proceedings filed per 1,000 cases in your district. Again, on a national basis, of all the adversary proceedings filed, only 10% are actually tried. Therefore, we've learned through experience to deep-set trials. I generally set four half-day trials for the same period of time. All the lawyers involved understand their case has been stacked, and this certainly encourages settlement. There are exceptions to the general theory, of course, and if the trial is really going to take a week and you know the odds are very great that the trial will actually occur, you simply have to allocate enough juridical days to hear the matter. In the structure of my calendar, I can get three consecutive days without any difficulty, being Monday, Tuesday, and Wednesday. If the case will take longer than that, we usually break on Wednesday afternoon and resume on Monday morning. I don't know about your district, but in man, trials of three or more days are rare indeed. After the pretrial telephonic conference, the courtroom deputy prepares the order for trial, and this is usually signed, entered, and mailed on the afternoon following the pretrial conference. Remember, up to this point, we've pushed the case at a rate of speed that doesn't give the lawyers time to forget all about the case. This same philosophy continues in the order for the trial. As I stated earlier, the trial would usually be held four to eight weeks after the pretrial conference. Therefore, the attorneys must begin to think about the case soon after the pretrial conference. The trial order provides for 15 days prior to trial. The attorneys provide a list of witnesses to the other attorneys in the court, and a list of exhibits must be produced for inspection by the opposing parties. Then 10 days before the trial, the parties are to file and serve a memorandum of law setting forth the issues in question, a brief summary of what the evidence will tend to prove, and any case authorities or statutes in support of the party's positions. Five days before the trial, any objection to the admissibility of an exhibit must be filed or the exhibit will be deemed admitted. The teeth in this order is the provision that if the party fails to disclose information as required without substantial justification, the evidence or witness will not be admitted or heard. The final provision is that failure to comply with the order may result in dismissal of the case or other appropriate sanction. We use this same scheduling order for evidentiary hearings. About four or five days prior to the schedule of trial, my staff attorney will call all the lawyers in the case to inquire about settlement. Unless the parties are fairly confident that the case will settle, the staff attorney then reviews the memorandum filed by the parties, and we discuss the matter. If we have questions in our minds that requires additional research that can be done prior to the trial. I can't overemphasize how important it is for the court to be well-prepared and informed as to the facts, issues, and law before the trial actually begins. This allows the court to have a clear and efficient focus during the trial. The judge already knows the facts he should focus upon, and it's always much easier to try a case when you don't have to figure it out while the evidence is being presented. Also, a knowledge of the case prior to the trial allows the court to guide the lawyers when they tend to stray from the primary issues. Remember, you need to keep the case moving. You can direct the attorneys at any time by asking questions or by advising the attorney of the information that you're interested in hearing. This approach is of great assistance to the judge in being able to rule from the bench rather than taking the matter under submission. At the conclusion of the trial, you're required by bankruptcy rule 7052 to find the facts specifically and state separately the conclusions of law. If at all possible, you should avoid taking the case under submission. Rather, you should take whatever break is necessary to formulate your ideas and then announce your findings of fact and conclusions of law from the bench. This could be 15 minutes or two days, and it can be done telephonically. Many years ago, I learned that the litigation is usually the most important thing going on in the person's life at that very moment. The parties indeed appreciate a prompt ruling by the court so they can get on with their lives and put the matter behind them. I'm sure that each judge will maintain his or her own system of research. The system we use in our district allows us to search for database by using keywords, statute numbers, name of judge, year of decision, or any combination. I mentioned earlier that we circulate our opinions among the other judges for approval before they're entered. Once they are entered, they're also entered into the research data bank along with all bankruptcy cases from our district court, our circuit court, and the United States Supreme Court from 1978 forward. The database also includes bankruptcy code and the rules. This information is available at the bench to me by computer. Having this information close at hand enables the court to rule consistently in similar fact patterns. It also allows the court to adequately address the law of the case and organize fashion by merely pulling language from a prior opinion. Remember, it's not necessary to reinvent the wheel each time you issue a decision. If you do take the matter under submission, however, keep it moving and issue your decision as soon as possible, preferably within a week or two. By doing this, you'll never have a case reported on the dreaded quarterly report published by your court of appeals. Up to this point in the discussion, you'll know that I've carefully avoided saying much about Chapter 13 cases. In our district, there are approximately 4,200 Chapter 13 cases pending, and each year there are about 1,500 filed. We found it more efficient for the court and also better received by the bar to rotate the entire Chapter 13 case load from judge to judge on an annual basis. The judge responsible for the Chapter 13 docket will allocate about four days per month while in Louisville to hear Chapter 13 matters. However, each others will continue to hear Chapter 13 matters in the divisional offices. In Louisville, the day in open court usually starts at 9 o'clock show-caused docket in the Chapter 13 cases. Here, debtors who have not been making their payments are called before the court to give their reasons for the delinquency and their proposals for catching up the payments to the trustee. The judge will often hear 30 to 50 of these in that hour. The motion docket will begin at 10.30, and at that time all motions except motions to terminate the stay will be heard. In the afternoon, the stay docket will be heard at 1.30 and at 3 o'clock. The court conducts telephonic hearings on motions to terminate the stay in those cases arising in the divisional offices. A Chapter 13 debtor is a person who is working and can ill afford to miss any more work than absolutely necessary. Therefore, following the first meeting of creditors held by the trustee on Wednesdays in our district, we hold the confirmation hearings beginning at 4 o'clock in the afternoon. The only debtors who are required to attend are those proposing a plan of repayment less than 70% and those who have an objection filed to their plan. Otherwise, upon recommendation of the trustee, the order of confirmation will be entered. By local rule, you can reduce substantially the amount of time you might otherwise sit on the bench. One area that necessitated a large amount of judicial time was motions to terminate the stay on an automobile because of failure to have insurance. Our local rules committee, which was comprised of representatives from the debtors and creditors bar in each chapter recommended and the court adopted a local rule that dramatically reduced our stay docket by informing the debtors of the requirements and telling creditors what they can do. This rule requires the debtor to furnish proof of insurance for at least 90 days after the date of a Section 341 meeting. It allows a maximum deductible of $500. Failure to furnish proof of insurance is presumed to mean that no insurance is in effect and the stay is deemed terminated. While this rule could be beneficial in chapters 11 and 12, its primary focus was in chapter 13 cases. Another local rule which reduced tremendously our motion docket is relative to the abandonment of property. About 96% of all chapter 7 cases in the nation and in our district are no asset cases. Percenture of our local rule, the notice of the Section 341 meeting states that the last day for filing an objection to the abandonment of property is 30 days from the first date set for the Section 341 meeting. If no objections are filed within this 30-day period and the trustee has filed his report of no distribution, the property shall be deemed abandoned. Trustees are required to file the report of no distribution at the end of 30 days, so motions for abandonment occupy very little of our time. While there isn't any direct impact on the calendar structure of a judge, our interpretation of bankruptcy rule 2002E relative to filing proofs of claim eliminates a lot of unnecessary work by the clerk and thereby frees the case administrators for more important matters. It also saves trees. Pursuant to our court's reading of that rule, each notice of the Section 341 meeting states that the case is a no asset case and that proofs of claims shall not be filed. If at a later date the trustee discovers assets from which a dividend can be paid, a notice is then given that the case is an asset case and that proofs of claim shall be filed within 90 days. There are certainly other innovative ways to better control your calendar, so don't be afraid to experiment. You'll never learn whether there are better ways to structure your calendar without trying different approaches. If you decide a new approach is a mistake, you can always go back to the old system or try a third way. I think it's advisable to establish your calendar on a yearly basis and then try to leave it alone so that lawyers will know your docket days and the types of matters you hear on various days. Always structure your calendar anticipating that filings will increase. Remember, filings each year are like a box of chocolates. You never know how many you'll get. In closing, let me again emphasize that you should always make an effort to stay off the bench and to encourage the parties to settle their differences. You should always be courteous to and consider the impact of your calendar upon the attorneys, your colleagues, the clerk's office, and the court reporter. Don't forget, the court could be equated to a large piece of machinery. If it's well-oiled and all pieces are functioning properly, the end result will be reached more quickly and with fewer problems. If any cog in the machine breaks or if any employee in the court fails to recognize the unity of the court, the end product will suffer. Our end product is the dispensing of justice to those who come before us. We must always remember that each person involved in the process is just as important as we are. If we adhere to that policy, justice will not be delayed or denied. Indeed, the last sentence of bankruptcy in the real 1001 will be accomplished. Good luck with your calendar. Thank you for your time.