When making the right decision matters, it is critical for litigants to know that their high-value suits are ready for trial. They should not have to question if their lawyers are prepared and whether or not they have identified which issues will matter most to the jury or judge, the settlement value, and the range of likely outcomes if the suit is tried. When facing a troublesome high-value case, Nixon Peabody can help.
Our Second Opinion service is a limited engagement to provide an independent assessment of litigation matters where Nixon Peabody is not serving as trial counsel. Second Opinion offers an important resource for high-value cases approaching trial or settlement. It may also provide fresh insights on cases that are not developing as expected because of adverse legal rulings or factual developments, or because they are over budget, delayed, or otherwise not on target for a satisfactory resolution. A second opinion from Nixon Peabody can occur early on, even before discovery begins, or later on, as discovery progresses—the earlier, the better.
Senior trial counsel review
Second Opinion engagements involve various types of reviews and evaluations, including utilization of mock trials. In a senior trial counsel review, a Second Opinion team made up of senior Nixon Peabody attorneys with the appropriate subject matter and trial experience will review the file and prepare a report—orally or in writing, at the client’s direction—addressing the issues of concern. Typical issues include:
- Legal theories: liability, damages, or defenses
- Adverse rulings: the desirability of appeal or writ review
- The merits: assessing the evidence and witnesses
- Trial readiness: including theme development
- Case management: time to trial and cost
- Settlement: strategy and value
The basis for the Second Opinion report will vary depending on the case, but may include a review of pleadings and important motions, exhibits, and testimony, as well as an interview of the client or in-house counsel. In some matters, but not all, independent legal research is appropriate.
Depending on the client’s wishes, existing trial counsel may be consulted and interviewed, or the process may be conducted without their involvement. Results may be shared with existing counsel as requested by the client.
Clients benefit from hearing the perspective of experienced trial counsel who are not responsible for past litigation strategy choices, and who can provide a candid, confidential evaluation of the case and existing counsel’s performance.
During a mock trial, we present the case to a panel of mock jurors or other neutral evaluators, as appropriate. We work with experienced jury consultants to recruit mock jurors from the venue where the case will be tried and orchestrate the event.
A mock jury exercise can test various aspects of the case including:
Trial counsel advocacy: Is counsel able to communicate the major themes effectively? Are the themes persuasive?
Witnesses: Are they clear and credible?
Documents and evidence, including graphic displays: Are they understandable and persuasive?
Damages: What do the jurors think the case is worth? Do they support punitive damages?
Nixon Peabody’s Second Opinion attorneys play the part of opposing counsel in the mock exercise, providing a fair test of the strengths and weaknesses of the case. We also observe the event with the client and discuss the lessons learned.
A mock trial exercise benefits the client by forcing trial counsel to organize and present the case in advance of trial, at least in abbreviated form; allowing the client to observe counsel’s performance in a trial setting; testing the persuasiveness of the trial themes and evidence; and observing (through one-way glass or video) the jurors’ thought processes while they deliberate. It is an excellent occasion for full and open communication between client and counsel regarding the strengths and weaknesses of the case and settlement value.
Setting up a Second Opinion engagement
Second Opinion engagements are custom designed for each case and can be arranged on a flat fee or hourly basis. To obtain more information, contact one of the attorneys listed below.