JAMS ADR Blog by Chris Poole
The litigation process is full of variables and, no matter how strong a party’s case might be, going to trial is rarely a sure thing. There is also a tendency for counsel and clients to be overconfident in their assessments of their position. Thanks to the evolution of ADR, however, parties have many options available to them to secure an unbiased, neutral evaluation or second opinion about the strengths and weaknesses of a particular case and trial strategy.
There are a full range of circumstances in which a second opinion from an experienced lawyer or former judge might be useful:
Pre-filing assessment: Deciding whether or not to file a case, and what claims to make, is a difficult decision. Input from a veteran law and motion judge, who has likely seen thousands of motions to dismiss, could effectively eliminate the risk of wasting time and money on unproductive pleading wars. An experienced neutral can also provide valuable information for a cost-benefit analyses of going to trial.
Case valuation in advance of settlement discussions or mediation: Second opinions from an experienced neutral about how to value a case for settlement purposes could be especially important for clients and counsel. Sometimes clients and lawyers need a second opinion to feel the confidence necessary to make difficult decisions and an objective assessment of the whole situation can be particularly valuable.
Mock hearings: Lawyers generally reserve mock trials for big cases that will be presented to a jury. However, it can be very valuable to secure a neutral evaluation of any aspect of a case to be presented to a judge or during administrative hearings. A second opinion based on a mock proceeding, for example, could be very useful in advance of a motion to dismiss, for summary judgment, class certification or even on especially significant motions in limine. On a more recently developing front, IP lawyers might find neutral second opinions especially useful when preparing to appear before a panel of administrative law judges in an inter-parties dispute in a Patent Trial and Appeal Board proceeding.
Preparing for an appellate briefing: Lawyers grappling with challenging appeals also can benefit substantially from second opinions about the content and style of their briefs, the manner in which they make oral arguments, and, most significantly, the strengths and weaknesses of their substantive positions. Retired appellate judges can alert counsel to key issues and vulnerabilities and can give lawyers opportunities to practice fielding difficult questions or dealing with difficult judicial personalities – thus both improving their performance and reducing the anxiety they experience when the real show begins.
As ADR becomes a more prominent feature of our legal system, it is important that counsel and clients understand the full range of options available to them. This is particularly true for neutral evaluation or second opinions, which provide valuable insights into the strengths and weaknesses of a case, helping to mitigate uncertainty while saving time and money.
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