How to Draft Bankruptcy Orders: Junior Associates' Guide to Workflows, Avoiding Ambiguity, Sidestepping Pitfalls

This CLE webinar will provide junior associates with a practical methodology for drafting, reviewing, negotiating, and submitting bankruptcy court orders. The panel will discuss how to identify the relief that an order must accomplish, translate a court's ruling into precise operative language, anticipate implementation issues, avoid unintended findings and ambiguity, and recognize provisions that require particular attention in common bankruptcy orders.

Drafting proposed orders is often one of the first substantive assignments given to junior bankruptcy associates. Most proposed orders accompany motions, but counsel may also be asked to negotiate an order with opposing counsel or reduce an oral ruling to writing. The associate who learns to produce accurate, complete, and workable orders—and whose drafts require increasingly less revision—quickly becomes a valuable member of the team.

A bankruptcy order is more than a summary of the motion or the court's ruling. It is an operative legal instrument. A well-drafted order must accurately reflect what the court decided, clearly identify the relief granted, and provide sufficient authority for the parties and others to implement that relief. Depending on the circumstances, the order may later be interpreted by a successor judge, appellate court, lender, purchaser, title company, governmental authority, or other third party with little knowledge of the underlying proceeding.

Different types of orders require different levels of detail, findings, and implementing provisions. Orders also should be drafted with an eye toward finality, appeal, enforcement, and later disputes. Findings or stipulations that seem harmless when an order is entered can have unintended consequences in later proceedings, while ambiguous or incomplete operative provisions may leave parties without the authority they thought they had obtained.

Forms and precedent can be useful starting points, but they are not substitutes for understanding the motion, objections, record, applicable rules, and the relief actually granted. Forms may contain outdated provisions, unnecessary findings, inapplicable language, or provisions that go beyond the court's ruling. Emerging technologies, including generative AI, offer additional drafting and review tools but likewise cannot substitute for legal judgment and careful verification.

Listen as our panel of experienced bankruptcy lawyers offers guidance to junior associates starting their careers on best practices for drafting orders.