Advisory Opinion - Considerations

The following is a list of factors to consider in using the Advisory Opinion Process

1. Intended value of an Advisory Opinion
1. Provides an objective risk assessment
2. Intended to reduce some of the settlement decision making errors (so called "reality check")
1. Case evaluation errors by one or more parties
2. Anchoring
3. May highlight information/data errors
3. Can assist in each party’s definition or redefinition of its reservation value
4. Can provide a "golden bridge" for a party or counsel
5. However, may not affect psychological or perceptual errors
2. Can an advisory opinion accurately predict the adjudicated outcome?
1. Predictability of the case
1. Known decision structure
2. Outcome turns more on data/law
3. Outcome not too sensitive on presentation and the actual testimony of the trial day
4. Prior history of similar matters
5. Facts not in great dispute or at least clarified
2. Predictability of the adjudicator
3. Adequacy of available data at the time of the advisory opinion
3. Does the selected neutral have the ability to predict the adjudicated outcome?
1. Training or experience in the subject matter
2. Adequate legal skills
3. Analytical skills
4. Can an advisory opinion persuasively predict the adjudicated outcome?
1. Willingness of parties to accept the opinion?
2. Are settlement decisions of one party driven by external factors?
5. Is the Opinion neutral and unbiased?
1. Able to be objective
2. Uses data known to all participants
6. Setting up the process
1. Scope of submittal
1. Fact
2. Law
2. Use of an agreement
3. Semi-binding options
1. Cost shifting (loser at trial bears the cost?)
2. Admissible advisory opinion in later proceedings

Download Adobe file regarding Advisory Opinions