Second Opinions, Done Right, Pay For Themselves
Tell a friend that you are contemplating surgery, and the immediate inquiry would be whether you had obtained a second opinion. And if you hadn’t, you would be strongly encouraged to do
just that. In health care, second opinions have become the norm.
Although lawsuits are often equally serious in terms of their cost and outcome, second opinions remain the exception in the legal arena. This is true even though it is difficult to debate
the benefits of obtaining a second opinion. It is far better to perform a reality check on a matter at the outset, when a client is considering whether to sue, what claims to assert, and the
cost/benefit of proceeding. Even as the case proceeds, there are periodic waypoints at which a third party assessment would be advisable; e.g., before a mediation or settlement conference, after
an adverse ruling or unexpected testimony, before a critical motion, or ultimately, trial preparation.
Litigation is unpredictable. The risks and costs are substantial. And no case is a sure thing. Moreover, we have all seen the case in which every principle of law may support one side, but
the equities of the underlying dispute or other extraneous circumstances drive the opposite outcome. I call these cases “star crossed”. It does not matter how good the case may look
theoretically, it’s not going into the win column. It is critical to identify these cases early in the process. As counsel become more embroiled in and committed to the fight, objectivity sometimes
There are two likely reasons why second opinions are not sought more routinely. The first involves the lawyer-client relationship. Some attorneys may look askance at the introduction of
a new law firm to the client, concerned that their own relationship might be undermined. Some attorneys may not like another lawyer – a competitor at that — looking over their shoulder.
These concerns can easily be avoided, however, by seeking a second opinion not from a competitor, but from a retired jurist or litigator who is familiar with the subject matter of the litigation.
Another factor that often militates against a second opinion is cost. But this too can be managed easily. The retention should be on a fixed fee basis. There is no need for the evaluator to
reinvent the wheel. No teams of associates are required – only a seasoned litigator whose judgment is trusted. There should be a laser focus on the key issue(s) in the case. Even in the
most complex matter, the evaluator need review only selected testimony and exhibits, the relevant court papers, and the legal research already completed. This is the same analysis a good
mediator will perform to understand a case. This analysis should be followed by working sessions with counsel of record, and ultimately the client. This can and should be done
promptly, in two weeks or less.
Vetting a case in this manner– providing the cost is contained – is a no lose situation. It ensures that the decision to proceed (or settle) is well founded. Inside counsel have their own clients –
the executives and directors who manage the company. The findings and recommendations of the evaluator help ensure that at the some point in the future, inside counsel are not asked the
dreaded “How did this happen?” question.
Some law firms offer clients a second look at a case they are handling by seeking input from other litigation partners or their critical motion groups. There can be disadvantages to this
approach. One question is whether it will be a true independent look at the case. Moreover, involving a team of new lawyers, even if from the same law firm, is simply not cost effective. The
irony of this cost discussion is that a second opinion, when done properly will pay for itself. Making the right strategic decisions at the right time will inevitably lead to more cost effective litigation results.
Mr. DiBenedetto of JDB Mediation LLC offers predictive analysis on specific issues or entire cases. His practice is centered in New York, Westchester, Nassau and Suffolk counties, in New York State Court and the Southern and Eastern Districts of New York.