When we are immersed in a case, we all tend to get blinders on. Client hopes and expectations, and our commitment to them and to their cause, can lead us to underestimate the other side and be overconfident about our case. Good lawyers routinely seek consultation in the drafting of important documents. Why not in the preparation for trial or arbitration? A second and neutral pair of eyes can save your case and your sanity.
What is it?
An experienced, objective and disinterested former judge or attorney works directly with counsel to provide a candid, confidential and objective assessment of a case or any part of the case, at any stage —before filing, summary judgment, trial or arbitration, before and upon appeal—whenever an outside view can be useful. A neutral evaluation may consider such factors as process, law, decision-makers, substance or evidence issues and potential outcomes.
At almost any stage, an evaluator can be useful: an objective view of facts and arguments, the value of your case, feedback/suggestions toward effective presentations, settlement posture. In some cases evaluators even interview key witnesses, or make presentations to Boards of Directors, or otherwise engage with clients. Indeed, one of the great values of neutral analysis is help in managing client expectations.
A neutral evaluation can be short and sweet, or extend sporadically through the life of the case. The evaluator works directly for you, to provide a candid and confidential assessment for your consideration.
When to do it?
At any point in a case, depending on your purpose. Each stage offers a possibility for a neutral evaluation to be useful:
Used early a neutral evaluation can help you and your client decide whether to proceed at all, balancing the expense of litigation and the likelihood of success. The neutral evaluator can help with identifying the unknowns and their importance, identifying the potential legal theories and the necessary elements of each, assessing the risks, prioritizing discovery, and so on. Or the neutral can offer a private assessment of claims brought against your client and how to respond to them.
Once the game is on, a neutral evaluator can help analyze a single issue, or all the issues, or frame a summary judgment argument. Are there any holes in your case that you need to close before discovery closes? What are your strongest arguments and how do you make them? Your opponents’ strongest arguments? Which arguments are just distractions? Do you move for summary judgment? For discovery or for real? What are the likely settlement options? What are the key jury instructions? Where do you need to be careful about preservation of error?
What about after trial or arbitration? Experienced appellate counsel often seek a neutral evaluation of the briefs (any appellate judge will encourage all attorneys, no matter how experienced, to have a nonparticipant who is literate in appellate advocacy review your briefs closely before you file them). Very often, appellate advocates conduct moot arguments to a panel that includes former appellate judges.
What about the expense?
Clearly there must be enough at stake to justify the expense. The cost depends upon the assignment: two or three hours to evaluate specific issues and discuss strategies with counsel will cost relatively little. Consultation at several stages may come to much more.
The point is that you have complete control: first, because the letter of agreement will specify the time allotted, and second, because you determine what tasks and materials are included in the evaluation. The process can take whatever form is useful to you, including written evaluation, informal conversation, meetings with clients and boards of directors – whenever you and your case can benefit from a second set of (experienced) eyes.
In short, an evaluator provides experience, confidentiality, candor and neutrality.
