PERSONAL INJURY CONFERENCE 2015 PAPER 5.1 Opinion Letters in Personal Injury: Perspectives These materials were prepared by A. Reza Rafi, Manager Litigation Policy of ICBC, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, June 2015. A. Reza Rafi
5.1.1 OPINION LETTERS IN PERSONAL INJURY: PERSPECTIVES I. Introduction... 1 II. Duty of Care... 2 III. Providing Value to the Client... 2 A. Examples of Non-value Added Opinions... 3 1. Internal Inconsistency... 4 2. Failure to Provide a Balanced Opinion... 4 3. Failure to Provide an Opinion... 4 4. Failure to be Descriptive... 4 5. Asking for Instructions where Advice is Required... 4 6. Timeliness of the Opinion... 5 7. Staying within the Scope of the Retainer... 5 B. Examples of Value Added Opinions... 5 1. Opinions that Result in Cost Savings for the File... 5 2. Reducing the Amount of Uncertainty on the File... 5 3. Dealing with High Risk Files... 6 4. Advising your Client what She needs to Know, even When it s not What She Wants to Hear... 6 5. Situations that Affect the Client s Broader Interests... 6 IV. Conclusion... 6 I. Introduction This paper will provide an overview of some of the best practices involved in producing an opinion letter for a client. The author of the opinion letter should focus on ensuring that the amount of time spent preparing the letter and the recommendations in the letter are proportional to the risk and uncertainty on the file. For many low risk and low uncertainty files there should be an emphasis on lowering cost to achieve value; that said, this should not occur at the expense of quality. Uncertainty is a measure of the unknowns on a file. A file could have high risk and low uncertainty when, for example, the injuries to the plaintiff are severe but the opposing party has disclosed all material facts. This paper is written from a defense personal injury perspective, although many of the principles discussed in the paper may be useful to the production of an opinion letter from other perspectives and for other practice areas. The scope of this paper is limited to cases where policy limits are not at risk of being exceeded. The paper is also not intended to provide an exhaustive list of value added and non-value added principles. Value is not the same as benefit. An opinion letter can provide benefit, but if cost is greater than benefit then the result will be waste. To achieve value, benefit must be greater than cost.
II. 5.1.2 Duty of Care The requisite duty of care expected of a lawyer was adopted by Kirkpatrick J. (as she then was) in Startup v. Blake, 2001 BCSC 8 at para. 67: The obligations of a lawyer are: (1) To be skillful and careful. (2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary. (3) To protect the interests of his client. (4) To carry out his instructions by all proper means. (5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him. (6) To keep his client informed to such an extent as may be reasonably necessary according to the same criteria. To meet these obligations, the lawyer s primary focus has traditionally been on the quality and comprehensiveness of the opinion letter. The idea that quality and comprehensiveness equate to value is consistent with the way that lawyers are generally paid through billable hour remuneration. The more time is invested then the more the lawyer is paid, so the better the opinion should be. However, a lawyer investing more time will not necessarily provide more value for the client. The lawyer may produce the highest quality opinion letter which addresses every possible issue that could arise, but if the opinion letter does not align with the client s needs then the cost of the letter will likely outweigh any benefit derived from it. III. Providing Value to the Client The first step in providing an opinion letter is for the lawyer and client to develop a shared understanding about the level of risk and uncertainty on the file. Developing the shared understanding about risk and uncertainty should occur before the lawyer starts to draft the opinion letter. This conversation will define the objectives (or objective as the case may be) for the opinion letter, the breadth of scope that is necessary, and the level of process and expertise that is required. The objective of your opinion letter is to provide value to the client. Where the cost of the opinion letter outweighs the benefit, the result is waste. Where the cost and benefit are the same the opinion letter provides benefit but not value. Where benefit outweighs cost value is created. Benefit is not the same as value, it is a variable in assessing value. Defining objectives will help the lawyer and client identify what is needed from the opinion letter. For example, the objective of the letter may be as narrow as providing an opinion regarding the risk on past wage loss, so the client can make an offer to the opposing party. If the lawyer produces high quality opinions that are not aligned with objectives then the result is waste because the client does not need the opinions to achieve her objectives. Identifying the objectives helps shape the next step in the process which is defining the breadth of scope that is necessary. Scope and objectives are inextricably tied and understanding the objectives will help define scope. Where the risk and uncertainty on the file is low, the conversation about objectives and scope will normally be brief to avoid increased cost. In the above noted example, where the objective of the opinion letter is to assess the risk regarding past wage loss, the scope of the opinion letter would be an opinion on past wage loss. In this example, if the lawyer also produced the highest quality
5.1.3 opinion on risk regarding non-pecuniary damages that would result in waste because the opinion would go beyond the agreed upon scope. However, objectives and scope are not static and may be redefined depending on the risk and uncertainty of the file. Clients will also have different levels of skill and expertise, which may influence the breadth of scope necessary on a file. Once the scope of the opinion letter has been defined it is necessary to consider the cost and benefit to producing the opinion. Opinions that do not provide benefit must be avoided as cost will outweigh benefit and the result will be waste. For opinions that provide benefit, cost is estimated and weighed against the expected benefit. If cost outweighs benefit then objectives, scope, and/or process need to be redefined. Where benefit outweighs cost, value added work is being provided. It is always important to account for financial considerations, but there may be circumstances where value is created even though financial cost on the individual file is greater than financial benefit. For example, the impact on one file may have a financial impact on many other files if it creates a precedent. Another example where benefit can be captured more broadly than the financial benefit on a particular file is where the opinion is assisting in the development and implementation of an overarching strategy to manage bodily injury claims. Where these broader potential impacts exist, they should be discussed during the conversation about objectives and scope. The more time the lawyer spends on the opinion letter, the greater the cost to the client. The time spent on the opinion letter is an example of process, which needs to be proportional to the risk and uncertainty on the file. The nexus between value for the client and civil litigation in BC is captured by the object of the Supreme Court Civil Rules, BC Reg. 168/09: Object (1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. Proportionality (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to (a) (b) (c) the amount involved in the proceeding, the importance of the issues in dispute, and the complexity of the proceeding. Process and cost should be proportional with risk and uncertainty. Time spent on the opinion letter is not the only example of process. The recommendations in the letter will also define the amount of process. For example, the lawyer may recommend that several experts be retained and several witnesses be interviewed. Less process is desirable where risk and uncertainty is low to avoid cost exceeding benefit. More process is usually required when risk and uncertainty increase, but it is important that the increase in process be proportional to the risk on the file so that cost does not exceed benefit. The opposing party s behavior may also influence the amount of process that is necessary. For example, when documents are not produced in a timely manner this may necessitate the need to recommend an application to obtain a court order for production of same. A. Examples of Non-value Added Opinions To obtain value, benefit must outweigh cost. The following are examples where cost outweighs benefit; thereby, resulting in waste for the client.
5.1.4 1. Internal Inconsistency Failing to be internally consistent within the opinion letter will compromise the value of the letter by communicating inconsistent messages that are difficult or impossible to reconcile. An example is a case where fault is in dispute and the lawyer describes the facts in a way that is very favorable to the defense, but concludes that the defendant is 75% at fault for the accident. Additionally, the lawyer is unable to describe the gap between the facts and her ultimate opinion. The lawyer s opinion on fault provides little or no benefit due to the internal inconsistency between the lawyer s ultimate opinion and the language in the remainder of the opinion on fault. Therefore, cost will likely outweigh benefit and the result will be waste. 2. Failure to Provide a Balanced Opinion Opinions should neither be overly pessimistic or optimistic. They should reflect a realistic and balanced assessment based on the facts. Overly pessimistic opinions will provide no benefit to the client and may harm the client by overemphasizing the exposure on the file. Overly optimistic opinions may harm the client by unreasonably emboldening the client and potentially exposing her to unnecessary risk. 3. Failure to Provide an Opinion To provide value, the lawyer needs to ensure that she provides an opinion and offering an extreme range of possible outcomes fails to do so. For example, if a quantum range captures two possible extreme outcomes without an opinion or any analysis about the most likely outcome(s), the client will receive little or no benefit from the opinion. This is not to say that there may not be some circumstances where it may be necessary to provide alternate quantum opinions based on whether certain facts or opinions are accepted by the trier of fact. 4. Failure to be Descriptive Failing to be descriptive can result in the failure to provide a useful opinion. For example, the description of a person s presentation at discovery as average is not materially descriptive and does little, if anything, to further the client s understanding of the person s presentation. Without useful descriptive terms the general identification of a person as average is inadequate and provides little or no benefit. In this case, being descriptive will include a description of what the lawyer sees. For example, rather than stating that the person appeared anxious, the lawyer should describe that the person appeared anxious when she was talking about the accident because her hands started shaking and she started speaking more quickly. The lawyer should compare the consistency of this description with available documents. For example, whether the plaintiff s presentation is consistent with what she told her health care practitioners and what, if any, effect does this have on the level of risk for claims the plaintiff is advancing. 5. Asking for Instructions where Advice is Required An example is where the lawyer simply asks the client if she would like to have an expert retained for the file. Unless it has been agreed that this falls outside of scope, if the lawyer believes that expert opinion evidence is necessary for the proper conduct of the file then that opinion should be provided with a measure of the cost for obtaining the opinion compared to the expected benefit. The lawyer s opinion will also be valuable in understanding the most appropriate area of expertise and subspecialty that is necessary. Benefit is achieved by helping the client understand when expert
5.1.5 opinion evidence is necessary to evaluate the risk on the file and to defend the claim. In cases where there is little benefit to be gained by retaining an expert, due to a high level of certainty and low level of risk, a recommendation to obtain expert opinion evidence may lead to waste. Where appropriate, the lawyer should apply her legal skill and knowledge to save cost and add value through advice that can help with issues such as the use of joint experts. 6. Timeliness of the Opinion The timing of the opinion letter should align with the strategic objectives of the letter and the file in general. The lawyer and client should define objectives together prior to starting the opinion letter. Delays in producing the opinion letter may have an effect on its value. Nonetheless, the lawyer and client may agree to postpone the production of an opinion letter, in whole or in part, for strategic or other practical reasons such as awaiting material facts on an issue. Defining scope and objectives will often facilitate a more concise opinion letter, which should also decrease the likelihood for delays. The client may only need the lawyer s expertise on one or two points to help develop a better understanding of the file and ultimately resolve the issues in dispute with the opposing party. 7. Staying within the Scope of the Retainer As listed in Startup v. Blake, one of a lawyer s obligations is To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary. The lawyer must not venture outside the retainer. For example, unless the lawyer is coverage counsel, she must not opine on coverage. With respect to matters that fall within the scope of the retainer, early discussion with the client will help define the amount of process that is reasonably necessary so that it is proportional with the risk and uncertainty on the file. B. Examples of Value Added Opinions Value is created when benefit outweighs cost. Although it is always important to account for financial considerations when assessing benefit and cost, there may be circumstances where value is created even though financial cost on the individual file is greater than financial benefit. 1. Opinions that Result in Cost Savings for the File There are lawyers that identify viable defenses where other lawyers fail to do so. The lawyer is being paid to advise the client about the availability and applicability of legal defenses such as causation to protect the interests of the client and avoid overpayment on the file. Value in the form of financial cost savings for the client will be created when the financial benefit obtained from the advice is greater than the cost of the advice. The amount of financial value created will equal the amount saved through avoiding overpayment of the claim minus the cost of the advice. Where the advice and benefit are aligned with assisting in the development and implementation of an overarching strategy to manage bodily injury claims, value may be created even when financial cost for the opinion is greater than the financial cost obtained on that particular file. 2. Reducing the Amount of Uncertainty on the File Uncertainty can be an impediment to the client achieving her objectives. For example, the client s objective may be to assess the risk on a claim because she wants to provide the opposing party with an offer to settle. However, the client may be uncertain about the Plaintiff s entitlement to a claim
5.1.6 for past wage loss. Uncertainty around risk creates an impediment to proper assessment of the file and reducing this uncertainty provides benefit to the client. Where the amount of process invested is proportional to the risk on the file, value is created. 3. Dealing with High Risk Files The client needs to exercise a level of skill and care (Startup v. Blake) commensurate with the risk on the file. Without the requisite level of skill and care, the quality of the advice is unlikely to meet the client s needs and the client will be exposed to unnecessary or additional risk. Where the level of skill and care is commensurate with the risk on the file, the opinion letter should help to avoid and mitigate risk on the file which, in turn, will help to prevent overvaluation and overpayment of the claim. Notwithstanding that more process will likely be needed for high risk files, the amount of process needs to be reasonable and necessary to maximize value for the client. 4. Advising your Client what She needs to Know, even When it s not What She Wants to Hear Per Startup v. Blake, one of the obligations of a lawyer is to carry out the client s instructions by all proper means. Nonetheless, in some circumstances the lawyer s advice may be contrary to the client s view on exposure. For example, the lawyer may consider exposure to risk that was not identified and could harm the client financially or otherwise. Identifying these gaps has value in avoiding blind spots that may expose the client to elevated risk. The identified gaps must be based on a reasonable and balanced assessment of risk based on all the facts. Once the lawyer has expressed her opinion, it is the client s decision whether to follow that advice. If the client chooses not to follow that advice, the lawyer must carry out the client s instructions by all proper means and protect the interests of the client. 5. Situations that Affect the Client s Broader Interests Where the client s broader interests may be affected, the definitions of cost and benefit must consider the larger impact that the result on one particular file may have. Per Startup v. Blake, the lawyer has an obligation To protect the interests of his client and to protect those interests, the lawyer needs to have an understanding of how the results on her file may have an impact on the client s business. The potential broader impact can be a negative one or an opportunity to have a significant positive impact on the client s business. In these cases more process may be necessary in the production of the opinion letter and the process should be proportional to the risks and opportunities presented by the facts. IV. Conclusion The traditional way that most lawyers approach the delivery of value is by focusing on the quality and comprehensiveness of the opinion letter. This concept is consistent with the way that lawyers are generally incentivized through billable hour remuneration. The more work that is invested into the opinion letter then the better the opinion letter must be. However, the focus of the opinion letter should be client-centric and protect the best interests of the client by maximizing value for the client. Delivering value will be achieved by identifying the objectives and scope of the opinion letter, eliminating opinions that provide no benefit, minimizing cost, maximizing benefit, and ensuring that the amount of process invested in the letter is proportional to the risk and uncertainty on the file. Financial considerations will always be important in considering cost and benefit.
5.1.7 However, there will be situations where the financial cost on a file will outweigh the financial benefit, but value will nonetheless be provided. The presence of quality in the opinion letter will not necessarily equate to value, but the absence of quality will result in waste. The more value the lawyer can create, the better service the client will receive. Disclaimer: The views and opinions expressed in this paper are those of the author and do not reflect the official policy or position of ICBC. Examples provided in this paper are for informational purposes only. Nothing in this paper should be construed as legal advice. Nothing in this paper should be construed as direction from the author or ICBC to anyone.