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Second Opinions May Trim Legal Bills

by John W. Toothman

The National Law Journal (Feb. 1994)

    BEFORE ANY major medical treatment, particularly surgery, patients are accustomed to seeking a second opinion. This simple step has become so routine that, rather than upsetting doctors by implicitly questioning their judgment, doctors now insist upon second opinions, in part to provide protection from malpractice claims. And insurance companies pay for them because second opinions save money overall.

Something similar exists in the accounting field, particularly for publicly traded companies that submit to a "second opinion" of sorts from independent auditors who verify the accuracy of their financial statements.

In litigation, however, once clients choose a law firm to handle their case, that firm gains a monopoly over the diagnosis and treatment of litigation problems, leaving clients at the mercy of its judgment. Savvy clients shop new cases around to several firms, but must then choose one firm to handle the case from that point forward. Clients large enough to have in-house litigation lawyers to manage their outside lawyers have less to worry about, but even they could use an independent evaluation in unusual or risky cases.

Second opinions can be obtained at any point during the representation, whenever the issue is crucial or the client uncertain. Without them clients may never be certain when developments in the case are unusual, unnecessarily expensive, or the result of incompetent lawyering. It is human nature for an attorney to put the best possible spin on each event, even if he or she knows better. Clients usually hear only one perspective on questions such as:

  Is a summary judgment motion worth filing or could it backfire?

Are 10 depositions enough or five too many?

Will assigning another junior attorney make a valuable contribution to the case or just to the firm's profits?

Should we raise the issue of settlement now or wait until the eve of trial?

Money Matters

There are ways to streamline litigation, but, unless litigators are willing to act contrary to their pecuniary interests, clients never hear about them.

Four factors commonly exacerbate clients’ concerns about their litigators, and second opinions would solve or at least mitigate the problems they cause. First, most outside counsel are paid by the billable hour, so their economic interest is served by delaying and complicating the case. Second, as a case progresses, events such as a threat of sanctions or an unexpected negative court ruling may cause a client to doubt the lawyer's competence. Third, when a case is important or becomes nasty, both attorney and client can become so embroiled in it that clear-headed decision-making becomes very difficult. Fourth, clients receive bills with detailed descriptions of services, but they have no way of measuring whether the decisions that led to these bills were reasonable.

The biggest impediment to second opinions is likely to be the hurdles raised by litigators who feel threatened by them. One argument is sure to be cost: that second opinions are impossible to obtain unless clients lure two full firms and pay twice the legal fees.

The answer would be to follow the standard practice of the medical profession, whereby the second doctor usually examines the patient's chart and rarely does much additional testing, or that of the accountants, whereby an auditor independently verifies data but never recreates financial statements from scratch. Second legal opinions normally would be based on a review of key materials already on hand. Consequently, the cost would be only a small fraction of the primary professional's cost because the second professional is not re-inventing the wheel, just checking its alignment.

Another argument, made by traditional firms, might be that second opinions would add a layer of bureaucracy and cause delay. Providing routine second opinions, however, should take no more time than it would take in-house counsel to examine the matter when handled by an outside firm.

A Cost-Effective Procedure

For more complex or crucial questions that might require the second attorney to examine transcripts, check research or investigate the case more deeply, any extra time and expense should be cost-effective in comparison with the magnitude of the question at hand. If the case requires periodic second opinions as it progresses, the lawyer who will give them should be monitoring the case continuously, reducing the delay almost to zero and increasing the cost only slightly.

Another objection one might expect from traditional law firms is that obtaining a second opinion would undermine the working relationship between primary counsel and client. The answer to that is that doctors and accountants are not known for their humility, but they have learned to live with this threat to their self-esteem. Douglas Danner, longtime Boston trial lawyer and the author of more than a dozen trial advocacy books, believes that "trial lawyers are selected for their trial expertise and have unusually trial heavy schedules. Such busy lawyers welcome monitoring counsel." The author adds that monitoring counsel "helps the trial lawyer to make sure that the client's wishes are being carried out."

Firms that share Mr. Danner's attitude are likely to command their clients' respect. But some clients might prefer to go privately to a second lawyer. This should not be difficult, since the clients are generally in possession of the information necessary to form a second opinion. They can then issue corrective instructions without the primary firm ever knowing it is being monitored.

Any litigator afraid that a second opinion might undermine the lawyer-client relationship is not paying attention to the bigger picture. Sooner or later the primary litigator's judgment is going to be tested under fire from an opposing party's lawyer, in open court, where the consequences for the client and its law firm can be much more severe than hurt feelings. Experienced trial lawyers should welcome second opinions, if only to avoid malpractice claims.

Copyright 1994, 1998 John W. Toothman




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