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November 16, 2007
Should You Get a Second Legal Opinion Before Suing?
When a doctor gives you very bad news, especially something that involves a lot of pain, anguish or terminal qualities, it would probably be a normal reaction to say "I want a second opinion." How often does that ring true for legal issues, such as a costly lawsuit?
Some associations in California have suffered some very big losses pursuing legal actions when there were holes in the cases that were either overlooked, or not disclosed to the Board. It happens. It might be because of an over-zealous attorney, an individual or firm that needed to boost fees to cover overhead, a young and not yet seasoned attorney who was not up on the supporting authority. It might be that one attorney simply failed to ask enough questions, or questions pertinent enough to elicit the information creating the "holes". Someone may have overlooked something in the records. It may have been an attempt to "save" a Board that created the problem - by covering up the issues. It may have been that the Board misinterpreted the "legal ease". Some attorneys' prose is better and more understandable than others.
It is the board, and often the owners, who suffer greatly at a "lost case" scenario. Of course, this runs true for individuals as well. Many are "sucked" or "suckered" into lawsuits, or inappropriately advised so as to be reckless in their endeavors. And since, in California, probably as in other states, either side can easily be hit with hundreds of thousands of dollars in legal costs, theirs .... and the other parties (since if they prevail - they may have to reimburse the other side's fees and costs), the risks of filing a legal action come with a high price tag. And you cannot expect to back out and dismiss when you are forced to recognize the weaknesses, without the exposure to a motion from the other side to collect their attorneys fees and costs expended to date to defend.
A simple inquiry to an attorney from whom you seek advice, and then another, for a second opinion, is:
"What are the worst and the best possible scenarios in going forward with this [lawsuit, action, etc.....]?" You will want the attorneys to acknowledge not only the best scenaro, but also the risks. You can ask for the attorney's opinion on the "chances", but truly, there is no such thing as a "slam dunk" (I will expand on this in an article to come soon), and so if your attorney says:
"You cannot lose" or "we don't need to discuss the downside, I expect you to win", I hope you have asked the above question, and I hope you realize that you probably can lose. Things can happen and facts or circumstances can arise after the case is filed that can have a seriously detrimental effect (remember these famous words: "if the glove does not fit, you must acquit"). Surprises and unknowns wreak havoc sometimes.
There might be an isolated or unusual situation where the only options available involve a lawsuit, and so you have to look at a lawsuit - but - ask the attorney for all of the options related to "causes of action" and find out whether including all in a "bucket" sort of mentality might jeopardize your ability to "prevail" and collect reimbursement of fees. If you win one count and lose one, its unlikely you will recover all fees, and may not recover any.
And get a second opinion asking the same questions: "What is the worst possible case scenario with this action?" and "What is the best case scenario with this option." And then you might also tag on "What are the other options - all of them." (In other words, "What are our options or what will happen if I/we do not sue?")
Some attorneys need to be more careful as well, in presenting too pretty a picture about a legal process that exposes a client to a multi-thousand dollar risk. Some have gotten sued for failure to properly advise clients of the upside and the downside of a proposed course of action.
Believe me when I say, if someone or some association loses a bundle of money, or is exposed to large losses, they will be advised by attorneys to look at all possible avenues of recovery. That "laundry list" includes the professionals advising the Associations and individual clients.
However, it is very important not to point the finger in the wrong direction without justification and evidentiary backup. That, too, can lead to a large and painful judgment.
Posted by Beth Grimm at November 16, 2007 11:03 AM