Sometimes bankruptcy litigation is won by simple persistence. As Woody Allen says “80% of success is showing up”. Two instances this week where being ready and willing to have a hearing on a disputed issue resulted in victory before the hearing.
In my case, I had a marginal set of facts in a non dischargeability action against my client. The law on the subject was ugly but I cooked up the best argument I could for the discharge of the debt. I had earlier suggested to opposing counsel that my client was unlikely to be able to pay the claim if it survived but she slogged on. On the afternoon our cross motions for summary judgment were due and mine was just ready to file when my opponent called and proposed to dismiss the case rather than prepare a motion! Yahoooooo!
The other instance was a young lawyer I know, facing a trustee’s objection to confirmation of a plan. Convinced her client was getting a raw deal, she set it for a hearing and served discovery on the trustee. Lo and behold, a settlement offer came back several hundred dollars a month better than the prior offer.
Goodness knows I am not advocating mindless litigation. Bankruptcy is all about limited resources and making deals that serve the parties better than a fight over crumbs. In general, our clients can’t afford to pay us even to win most disputes in bankruptcy.
But willingness to go the distance on well chosen issues and to prepare to argue the matter to a judge often gets you a better settlement than otherwise available. And if it doesn’t settle out, it gets you a little trial experience.
