As an avid fan of the Dallas Cowboys for over four decades, I have had the privilege of witnessing a legacy of excellent quarterbacks – from Staubach to Aikman to Romo. And now we have rookie Dak Prescott, who is exceeding all expectations (and causing fans to anticipate a quarterback controversy when Romo returns from injury, a topic I will not delve into in this post).
Prescott has thrilled fans with his unique combination of arm strength and running ability. But equally as impressive has been his decision-making. Through the first six games, Prescott has thrown seven touchdowns and only one interception, and that was after breaking Tom Brady’s record for the most passes without an interception to start an NFL career. Prescott seems to fully appreciate that, although you certainly have to score points to win, “taking care of the football” (not turning the ball over) is a vital part of being a successful quarterback in the NFL. And Prescott has already demonstrated a willingness to throw the ball away when the alternative is to try to “force” a ball into triple coverage; he understands that there are significantly worse things that can happen than punting the ball on 4th down. Although punting is not as fun as scoring, it allows the team to live to see another day – or drive – without giving the ball to the other team with a short field, or, worse yet, the opportunity for a “pick six” (interception return for a touchdown).
There is punting in bankruptcy litigation as well; it is called settlement. Settlement only becomes possible after all parties fully analyze the strengths and weaknesses of their respective cases and consider the risk of losing at trial. Almost all litigators have encountered the adversary who simply fails to recognize that they are pursuing an untenable position – in other words, the litigant who wants to force the ball into tight coverage. And in those instances, settlement is often impossible, unless a strong mediator can convince the obstinate side to “punt.” Of course, if you find yourself with such an opponent, you need to be prepared to take advantage of the “short field” they will inevitably provide you.
When parties are able to come together and agree on a settlement, it is generally considered a “good deal” if nobody walks away completely satisfied, and that is a fitting sentiment with regard to bankruptcy settlements as well. But parties to a compromise of a bankruptcy dispute typically achieve an extra level of affirmation, if not satisfaction: Rule 9019 of the Federal Rules of Bankruptcy Procedure requires, in most instances, settlements to be approved by the bankruptcy court after notice and a hearing. At that hearing, the trustee or debtor-in-possession must show, among other things, that the settlement is “fair and equitable.” As a result, parties to a bankruptcy settlement, once approved, can find some solace in knowing that the court ruled on it.
In bankruptcy litigation, you need to have a “quarterback” (counsel) with the tools to win at trial. However, your quarterback also has to be prepared to make the smart decisions. Sometimes, that leads to punting, or settling. And sometimes, that’s okay.