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Second Opinion Service

The medical profession has long recognized the important role of second opinions. When faced with the prospect of major surgery, a patient often seeks another doctor’s opinion to ensure that the proposed treatment is the right one. But when faced with high-risk, big-stakes litigation that threatens the financial well-being of a company, soliciting a second opinion is often overlooked. Kaye Scholer now offers a Second Opinion Service to companies facing such litigation.

Our Second Opinion Service is (i) provided on a Fixed Fee Basis, (ii) by a Team that is completely independent and (iii) it is the work product of three nationally known litigators (with 108 years of collective experience), each with a different litigation background and perspective. Kaye Scholer’s Second Opinion Team includes seasoned trial lawyer Alan Salpeter, appellate attorney Steve Rosenthal and the recently retired, highly respected judge Jim Catterson.

When Is A Second Opinion Needed?
The Second Opinion is appropriate in many situations, but particularly:

  • when the client reaches a critical decision point in a case
  • when the Board of Directors, Audit Committee, General Counsel or Senior Management needs assurances that the matter is being properly analyzed
  • when the client is deciding whether to settle the matter or take it to trial (or pursue appeal)
  • when disagreement exists about the likely outcome or the amount of risk presented by the case

What Is The Second Opinion Service?
Kaye Scholer’s Second Opinion Team reviews the entire litigation and responds to the client’s specific substantive questions and concerns. Specifically, we focus on the following:

  • Legal Theories: We analyze the theories of liability, causation, damages, as well as affirmative defenses (and counterclaims) to evaluate their probability of success.
  • The Merits of the Case: We assess the documentary evidence, the fact and expert witnesses, the applicable law, and the overall strengths and weaknesses of the case (including the equities of the case).
  • Adverse Rulings: We evaluate the desirability of reargument of adverse rulings in the trial court or attempting interlocutory appeal.
  • Case Management: We review the overall approach toward discovery, trial and appeal including cost analysis of each phase.
  • Trial Readiness: We examine whether the “story of the case” has been appropriately developed and presented and whether it is convincing.
  • Reputational Risk: We analyze the long-term implications of adverse rulings on the client’s reputation in both the stream of commerce and government relations.
  • Settlement: We strategize about settlement, assess loss potential, and consider the impact of settlement on earnings, and loss of competitive advantage.
  • Appeal: We examine and/or recommend an appellate strategy, including an analysis of the judges of the appellate court, all of the appellate issues and mock appellate arguments.

The end result or deliverable of the Second Opinion Service will be (1) an oral presentation by our entire Second Opinion Team to the client contact followed by (2) a detailed report of the Team’s findings and conclusions. At the oral presentation, the Team members will meet face-to-face with the client’s principals to describe and explain their findings and conclusions, respond to questions from the client, and discuss the Team’s recommendations with respect to the case.

Our Second Opinion Service is unique because it is a wholly independent evaluation of all aspects of a pending or threatened litigation. Kaye Scholer’s Second Opinion Team will act independently of present trial counsel and will not seek to compete with, or be substituted for, present counsel. This will afford the client, its management, inside counsel and existing litigation counsel a high degree of comfort in the independent, objective and “tell-it-like-it-is” nature of our counsel.

The Fee Arrangement
Kaye Scholer’s Second Opinion Service will be provided on a Fixed Fee Basis.  All three members of our Second Opinion Team will meet with the interested client for an initial consultation (with no fees being charged) to gain an understanding of the litigation and to tailor the Second Opinion Service to the specific case at hand.  Once the assignment is understood, our Second Opinion Team will quote a Fixed Fee for their work.  The Fixed Fee will represent our total fees for providing the Second Opinion so long as the scope of the project is not changed by the client.  Out-of-pocket expenses are reimbursed separately.

Meet the Team
Kaye Scholer’s Second Opinion Service Team consists of the following lawyers (all of whom will work on each and every second opinion):

  • Alan Salpeter (Chicago):  Salpeter has tried nearly 70 bench and jury trials and argued over 20 appeals in state and federal courts throughout the country.  Chambers USA (2007) described Salpeter as a “premiere trial lawyer and masterful strategist.”  A Fellow in both the American College of Trial Lawyers and the International Academy of Trial Lawyers, Salpeter also teaches “The Strategy of Litigation” at Northwestern Law School.  He particularly focuses on corporate, securities, financial services, technology and pharmaceutical litigation.
  • Steven Rosenthal (Washington, DC):  Rosenthal has extensive arbitration, trial court and appellate experience on matters involving constitutional law, administrative law, as well as general commercial litigation. He has argued several cases before the U.S. Supreme Court and about 40 cases in the federal and state appellate courts throughout the country. In April 2013, Rosenthal argued before the U.S. Supreme Court a high profile case on behalf of the Port of the City of Los Angeles on issues involving interstate trucking and state environmental law.  Previously, he won a case in the U.S. Supreme Court which held that it was unconstitutional to impose social security taxes on federal judges in office.
  • Honorable James M. Catterson (New York): Prior to joining Kaye Scholer, Judge Catterson was a trial judge in the New York court system for six years where he tried over 600 and settled over a thousand cases. He then became an Associate Justice of the Appellate Division, First Department of the New York Supreme Court for nine years where he participated in more than 6,000 civil and criminal appeals. He authored more than 250 opinions and dissents during that period. Before becoming a judge, Catterson served as an Assistant U.S. Attorney in the Eastern District of New York and was Chief of the Asset Forfeiture Unit.

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