The Trustee may be forced to hire accountants to determine the date of insolvency, determine what records exist to prove the antecedent nature of debts, and perform improvement of position analysis on each claim. All of this adds to the Trustee's costs and risk in cases where there are no other assets to cover the cost of the litigation, and really makes the case a contingent fee case. There is obvious incentive for the Trustee to not pursue marginal cases especially, and some creditors may benefit. However, everyone should realize that these tactics not only increase the cost to the estate, they also greatly increase the costs to the preference defendant, and are usually counter-productive when there truly exists a voidable preference. Not only will the preference defendant ultimately have to pay back the estate the amount of the preference, but he gets to pay his attorney a substantial fee before exercising his check-writing abilities, and has his own valuable time diverted from making money to trying to keep it.
Litigation is the least desirable solution for everyone.
Preference defendants also need to recognize that Trustees will be pursuing these claims in future cases as well, and Trustees must be concerned about sending messages to attorneys and business people that will haunt them in the future. Thus, to be effective, they must develop the reputation of being willing to take a case all the way to the end, and take their losses when necessary. They must not develop a reputation of being a pushover, and of folding every time they face some opposition. They do not want to send the message that they never back up their threats, or will consistently settle even strong cases for pennies in order to avoid the fight. The Trustee needs to develop a reputation as an experienced, rational, realistic bankruptcy practitioner who is willing to drop a non-meritorious claim, and who will pursue meritorious claims aggressively.