What to Look for in a Bankruptcy Litigation Lawyer

Although the bankruptcy laws apply to everyone, most bankruptcy lawyers will tell you that assisting a billion-dollar company in a commercial bankruptcy case will require more work than helping an individual filer in a consumer matter. Regardless of the type of case, however, being involved in litigation is stressful. In this article, you’ll find tips you can use when it’s time to choose a bankruptcy attorney qualified to handle your litigation needs.

Know What to Expect in Bankruptcy

Educating yourself about the bankruptcy process will give you the confidence you need to ask the right questions during the selection process.

Consumer Bankruptcy

A consumer bankruptcy case—one brought by an individual under either Chapter 7 or Chapter 13 bankruptcy—is relatively straightforward. In fact, most consumer cases don’t require any litigation, and the filers won’t appear before the bankruptcy judge.

At most, a simple consumer case might involve a routine motion. Here are a few examples:

• a motion to lift the automatic stay (if granted, the creditor can resume collection activity)
• a Chapter 7 trustee’s objection to a creditor’s proof of claim, or
• a Chapter 13 trustee’s objection to the debtor’s repayment plan.

Such motions require little testimony and argument to the court (and sometimes are resolved informally). Consumer bankruptcy lawyers handle such matters routinely.

That is not to say that a consumer bankruptcy will never involve difficult questions of law. Consumer bankruptcy lawyers are qualified to represent their clients in full-scale litigation called adversary proceedings. Amongst other matters, a typical adversary proceeding might decide whether:

• a particular debt can be discharged (forgiven), or
• the debtor will be denied a general discharge.

However, keep in mind that many consumer bankruptcy lawyers don’t want to do litigation and will let you know that you’ll need to hire a bankruptcy attorney that focuses on litigation issues should the need arise.

Commercial Bankruptcy

A law practice that specializes in Chapter 11 bankruptcy and large commercial Chapter 7 cases will be much different than what you’ll find in a consumer practice. You also won’t find as many, because these types of cases represent a small fraction of the total bankruptcy filings.

Chapter 11 cases are unique in that they usually involve dozens, hundreds, or even thousands of creditors, all with differing interests, many of whom want to have a say in the case. The attorney will negotiate much of the Chapter 11 plan amongst the parties. But if the debtor cannot solicit the necessary agreements, the process of getting the Chapter 11 plan approved can be contentious. Because of the amount of work an attorney can spend on a Chapter 11 case, you should expect to pay a hefty retainer.

The Initial Consultation

When you visit with a bankruptcy litigation lawyer, you’re not obligated to hire the attorney. Although many will try to sell you services, you should not feel pressured to sign a retention agreement.

Keep in mind that most attorneys who represent consumer debtors will not charge for an initial consultation; however, those who represent creditors (as opposed to a debtor) and those who specialize in commercial cases ordinarily do charge for the first meeting.

You’ll want to bring any documents you have and be prepared to discuss details of the case with the attorney. Don’t be afraid to ask questions. Here are a few topics to cover:

• how long the attorney anticipates that the litigation will take
• the expected outcome
• the cost of the attorneys’ fees (and how you’ll pay), and
• the attorney’s office structure (will you be dealing mostly with the attorney or with a paralegal or other staff?).

It’s also a good idea to ask for the names of current or former clients or clients who would be willing to offer a reference. You can also consider searching for reviews online.

For more information, read What Should I Expect From My Bankruptcy Lawyer?