A second opinion on a legal dispute

Sometimes the question is not whether you need legal advice. You already have it.

The question is whether the present strategy is right.

A second opinion can be useful where a case has become expensive, the advice has changed, you are being encouraged to settle, you are being encouraged to continue, or you simply want somebody independent to stand back and look at the case again.

Independent Case Review

• which papers I will read;
• the questions I am being asked;
• whether you want a written assessment, a conference or both; and
• the fee.

What I can look at

Depending on the case, the review may cover:

• pleadings and principal correspondence;
• key agreements;
• the chronology;
• important documentary or witness evidence;
• strengths and weaknesses;
• evidential gaps;
• existing advice;
• settlement offers;
• whether the present strategy appears proportionate; and
• questions which may need to be put to your existing lawyers or counsel.

Questions clients ask about getting a second opinion

• When is a second opinion worth getting?

  I would consider it where the next decision is important enough that you want another pair of experienced eyes on it.

  That may be because the case has become much more expensive than expected, the advice has changed, you are being encouraged to settle, you are being encouraged to continue, the evidence has moved on or you simply no longer understand why the present strategy is being followed.

  A second opinion does not have to involve reviewing every page of the file.

  Often the better approach is to identify the decision which needs to be made and agree the core papers required to answer it.

• Does asking for a second opinion mean my existing lawyers have done something wrong?

  No.

  Good disputes involve judgment calls and reasonable lawyers can reach different views about strategy.

  Sometimes an independent review confirms that the existing advice is sensible. That can itself be valuable, particularly where the client is about to make an expensive or irreversible decision.

  The purpose should be to test the position, not to manufacture criticism of the existing team.

• What documents would you normally need?

  That depends on the question I am being asked.

  I would rather read the ten documents which actually determine the issue than receive ten thousand pages without a clear purpose.

  For a focused review I may ask for the key contract, pleadings, important correspondence, existing advice, a chronology, relevant witness material and any current settlement offers.

  If more is required after that, I can say so.

  The scope should be agreed before the client pays for a large document review which may not be necessary.

• Can you review advice I have already received from solicitors or counsel?

  Yes, where that material forms part of the agreed review and it is appropriate for me to see it.

  Before existing privileged advice is shared, the basis for preserving its protection should be considered with the existing advisers. Do not send privileged advice with an initial enquiry before RWS has confirmed whether it can consider the matter and how the material should be shared.

  I would look at the advice alongside the underlying documents and the question the client now needs answered.

  The point is not to mark another lawyer’s homework. It is to understand the reasoning, test it against the evidence and identify whether there is anything material which should be considered before the next decision is made.

• What do I actually receive from an Independent Case Review?

  That depends on the scope agreed at the beginning.

  Some clients want a written assessment. Some want a conference after I have read a defined set of papers. In other cases the useful product is a short list of issues or questions to take back to the existing legal team.

  Before the work begins I prefer to agree the papers, the questions being asked, the output and the fee.

  That keeps the exercise focused.

• Can you look at whether the legal spend still makes sense?

  Yes, from the perspective of strategy and proportionality.

  I can look at what remains at stake, what work appears necessary, what the next procedural steps are and whether the proposed strategy is proportionate to the objective.

  That is different from carrying out a formal solicitor-client costs assessment.

  The question I am usually interested in is simpler: does the work now being proposed make sense in the context of this particular dispute?

• Do I need to tell my current solicitors that I am getting a second opinion?

  Not necessarily for a completely independent review, although the circumstances of the particular case matter.

  If the aim is for RWS to work directly alongside the existing team, that proposed arrangement must be assessed before it begins. Working for, being paid by, or working under the direction or supervision of a solicitor or regulated firm may require prior written SRA approval because of Ryan’s suspension. Where required, approval and its conditions must be in place first.

  I would not recommend creating unnecessary friction with lawyers who may continue to play an important role in the matter.

• Will RWS take over my litigation if I decide I want to change firms?

  No.

  RWS is an independent legal consultancy and does not conduct litigation.

  If you need a new firm to go on the court record and conduct reserved litigation work, you will need an appropriately authorised practice.

  RWS may still be able to provide separate non-reserved strategic or analytical support where appropriate.

Is an RWS second opinion the right fit?

If the review identifies a reserved step which needs to be taken, that step must be handled by the client where permitted or by an appropriately authorised practitioner.