# Exhibit III-3. Sample Order Requiring Presentation of Evidence by Declaration

TRIAL BY DECLARATION

by\
BARRY RUSSELL\
U.S. Bankruptcy Judge

The attached "Order re Presentation of Evidence by Declarations for
Court Trial . . ." concerns a procedure which I have been using for
several years with excellent results, in my opinion, for Court trials.
The second introductory paragraph of the Order states:

> The purpose of this procedure is to ensure a fair and expeditious
> trial. The procedure is similar to a motion for summary judgment,
> except that the admissibility of a declaration is dependent upon the
> presence of the declarant at trial subject to cross-examination.

Using this procedure, I have been able to try matters that would
normally take one to two weeks in one-half to one or two days. Since
almost all direct testimony is admitted into evidence by the witnesses'
declarations, the in-court time for this testimony is generally
eliminated. This procedure does not work well unless both sides are
represented by counsel.

Because counsel are forced to carefully prepare the declarations that
are admissible under the Federal Rules of Evidence, I have found the
declarations to be very brief and far more direct than if the direct
testimony were given orally in open court. I have also found that
cross-examination is much shorter and frequently waived. I believe this
may be due in part to the fact that many attorneys feel compelled to
cross-examine witnesses, especially when the client is present in Court,
and after the other side's counsel has spent considerable time
questioning its witnesses on direct examination.

This procedure is most beneficial to the Judge's needs. In addition to
saving a great deal of time, I have found that I am much better prepared
to decide the matter. By requiring that briefs be filed with the
declarations, I am often ready to decide the matter on the declarations
submitted prior to trial. That is to say, in many trials (usually the
more simple matters) both sides submit on the declarations without any
cross-examination and without argument (they have already argued in the
pretrial briefs).

Naturally, to make the procedure work, the Judge must take the time to
read the declarations and the briefs prior to trial. This can be done at
the Judge's leisure, either in Chambers or at home relaxing by the pool,
etc. An additional benefit is that by requiring the parties to be fully
prepared, they often settle matters which I believe would otherwise have
gone to trial.

The following comments relate to specific suggestions I have concerning
certain aspects of the attached Order.

1\. DECLARATIONS:

\(a\) Since this is a trial, the admissibility of evidence is governed
by the Federal Rules of Evidence. I have found that "hearsay" and
"irrelevant" are by far the most frequent objections and are easily
determined by this procedure. Try not to waste your time by hearing
arguments on these unless you are really unsure. In any case, you will
decide the relevancy when you render your decision. I would suggest
generally overruling objections relating to the form of the answer as
opposed to those objections relating to substance. I have found that
very few objections of any kind are made to the declarations, and the
objections made are easily decided.

\(b\) Some counsel may hold back evidence that should have been in their
declarations as part of their case-in-chief and claim it is merely
rebuttal. If you strictly enforce your Order they will soon learn that
you will not tolerate such attempts to circumvent your Order. I would
stress this and other points at a status hearing with all counsel
present.

\(c\) Requiring exhibits to be attached to the declaration makes the
reading of the declaration easier and more understandable. You may have
to modify this requirement if there are a large number of exhibits. In
that case, the declarant should refer to the exhibits which should be
provided to the Court and counsel as part of the Pretrial Order.

\(d\) The filing of a declaration by counsel, concerning witnesses for
whom declarations cannot be obtained, helps to reduce surprises and is
important for the Judge and opposing counsel to be aware of all the
evidence to be presented by both sides.

\(e\) It is important to strictly adhere to the requirements of the
Order. If a declarant does not appear at the trial, the declarant's
declaration may not be introduced into evidence. The decision to
continue the trial because of an unavailable witness is the same as it
would be at a trial without declarations.

In the beginning you may encounter some counsel, as I have, who don't
believe you mean it and will appear at trial with witnesses for whom
they have not served and/or filed declarations. If you comply with your
Order and refuse to allow the witnesses to testify, that particular
counsel and others will quickly realize that you really mean it.

2\. TIME FOR FILING DECLARATIONS, ETC.:

I generally set the time for filing the declarations so that the last
one is filed two weeks before the trial or pretrial hearing. I usually
give the plaintiff about three to four weeks to file its declarations;
defendant, two to three weeks to file its reply declarations; and the
plaintiff, one to two weeks to reply. Any evidentiary objections must be
filed with that party's declarations with the defendant filing its
objections, if any, to plaintiff's reply declarations, at least one week
before trial or pretrial.

3\. TIME FOR FILING BRIEFS:

I don't order the filing of briefs, but I do order that if they are
filed, they may only be filed in accordance with the Order. Almost all
counsel file briefs and it is nice not to have them handed to you as you
start the trial.

4\. PRETRIAL ORDERS:

I almost always, except in the simplest matters when everyone knows what
is in-issue, require a Pretrial Order. In Los Angeles, we have a Local
Rule which spells out the requirements. Many Judges issue their own
order. In either case, I require the Pretrial Order to be filed on the
same date as the plaintiff's declarations. I do that to force the
parties to get together as soon as possible.

5\. SETTING OF TRIAL OR PRETRIAL:

I generally order the reply declarations to be filed two weeks prior to
trial. If I don't have a good idea how long the trial will take, I set
it for a pretrial hearing with the reply declarations to be filed two
weeks before the hearing. I have found it helps to emphasize to counsel
that you will try their two day trial in one hour, or their one week
trial in one-half a day. There is no need for opening statements, and
closing arguments should be kept to a minimum unless the
cross-examinations have revealed new facts.

I would advise issuing your Order at a status hearing with all counsel
present to orally emphasize those points you wish to emphasize, and to
answer any questions of counsel. This is especially important when you
first initiate this procedure.

UNITED STATES BANKRUPTCY COURT\
CENTRAL DISTRICT OF CALIFORNIA

In re: )
Chapter\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> )
>
> ) BK. NO.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ BR
>
> )
>
> ) ADV. NO.\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ BR
>
> )

Debtor(s) ) ORDER REPRESENTATION OF

) EVIDENCE BY DECLARATION FOR

> ) COURT TRIAL; FILING JOINT
>
> ) PRETRIAL ORDER PURSUANT TO
>
> ) LOCAL RULE 7016- 1
>
> ) Date:
>
> ) Time:

Plaintiff(s) ) Place: Courtroom 1668

) 255 E. Temple Street

) Los Angeles, CA 90012

Defendant(s) )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

The following procedures are to be followed for the presentation of
evidence to be offered at the trial of the above-entitled proceeding on
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

The purpose of this procedure is to ensure a fair and expeditious trial.
The procedure is similar to a motion for summary judgment, except that
the admissibility of a declaration is dependent upon the presence of the
declarant at trial subject to cross-examination.

**1. DECLARATIONS:**

\(a\) Except as herein provided, each party shall present the testimony
of all its witnesses through declarations of said witnesses, under
penalty of perjury, otherwise admissible under the Federal Rules of
Evidence.

\(b\) The only oral testimony which may be offered at trial by a party
through its witnesses will be **STRICTLY** limited to rebuttal
testimony.

\(c\) If a portion of a witness' declaration concerns an exhibit to be
admitted into evidence at trial, the exhibit must be attached to the
declaration.

\(d\) If a party is unable to obtain a declaration of a witness, counsel
for that party shall file a declaration stating the name of the witness
and a detailed summary of the expected testimony and why counsel was
unable to obtain the witness' declaration.

Failure to make every reasonable effort to obtain the declaration of any
such witness will result in the exclusion of any oral testimony of such
witness offered by the party.

If a party intends to present the witness' testimony by a transcript of
a deposition of the witness only those portions of the transcript
intended to be offered, should be attached to its counsel's declaration.

\(e\) The declaration of a witness for a party will be admissible at
trial, subject to timely objections, and if the declarant is present at
trial, and subject to cross-examination.

**2. TIME FOR FILING DECLARATIONS AND OBJECTIONS TO DECLARATIONS:**

\(a\) Plaintiff shall serve and file its declaration(s) on or before
\_\_\_\_\_\_\_\_\_\_\_\_.

\(b\) Defendant shall serve and file its declaration(s) and any
evidentiary objections it has to plaintiff's declaration(s) on or before
\_\_\_\_\_\_\_\_\_\_\_\_\_.

\(c\) Plaintiff shall serve and file its reply declaration(s) and any
evidentiary objections it has to defendant's declaration(s) on or before
\_\_\_\_\_\_\_\_\_\_\_\_.

\(d\) Defendant shall serve and file any evidentiary objections to
plaintiff's reply declaration(s) on or before
\_\_\_\_\_\_\_\_\_\_\_\_\_.

\(e\) [NO OTHER DECLARATIONS WILL BE ALLOWED]{.underline}. The only
additional evidence a party may offer at trial is **TRUE** rebuttal
evidence.

**3. TIME FOR FILING BRIEFS:**

If a party wishes to file a trial brief(s), such brief(s) must be filed
with the party's declaration(s). A party may file its brief(s) at the
time(s) designated for filing its declarations(s), even though the party
chooses not to file a declaration(s). **[NO OTHER BRIEFS WILL BE
ALLOWED.]{.underline}**

**4. PRETRIAL ORDER:**

The parties shall file a joint pretrial order pursuant to Local Rule
7016-1 on or before \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_.

IT IS SO ORDERED.

Dated:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

> BARRY RUSSELL
>
> U.S. Bankruptcy Judge