What's Up With Oral Opinions in Bankruptcy?

06/28/21

I've been reading a lot of bankruptcy court transcripts this past year, and I've noticed how frequently judges issue rulings orally from the bench. Sometimes these rulings are clearly drafted out, complete with pincites, etc. Yet these decision are never published. The only way to find them is to dig through the transcripts, which are usually not available on the free public dockets, but only in PACER. 

I've got a trio of concerns about this practice as well as some general questions about why this practice exists that I'm hoping our readership (particularly judges) can answer. 

First, it results in a situation in which there is a semi-secret body of law that is known only to a few cognoscenti. A Westlaw or Lexis search won't turn up any of these decisions, so these rulings cannot readily be found by anyone who doesn't already know about them. Basically, if you haven't been involved in the case, you're not likely to know about these decisions. 

Second, the fact that these decisions are rarely known to those folks who weren't involved in the cases creates a huge advantage for firms that are involved in a lot of cases. Basically, they build up an Arsenal of judicial decisions that the opposition might not know, and these decisions are particularly useful to cite back to the judge who issued them or to other judges in the district. That extra knowledge makes it more likely that the law firm will be successful, which means that they're more likely to get future business, exacerbating the cycle. It's a version of network effects in the bankruptcy bar.  

Third, rendering oral opinions squanders the estate's money. Every extra minute of a hearing results in further billing by the debtor's attorneys and any committee attorneys, and perhaps a 503(b)(3)(D) substantial contribution priority claim. All of those attorneys are going to read the transcript anyhow, so hearing the judicial reasoning out loud seems wasteful. 

This results in a very troubling situation in which there is actually a good deal of law that cannot be readily found by anyone who doesn't already know about it. Yet they get cited in court. In particular, they are often cited to the very judge who made them. 

So readers:  what explains this practice? Is there some reason not to publish opinions? Does it affect the ability to take an appeal in some way? Is it just convenience? Or something else? Informed comments are very much encouraged!

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