---
title: "A separate view of a dispute"
description: "A consequential dispute may justify a second assessment: which assumptions support the case, what could change the outcome, and whether the proposed course still serves the client."
language: "en-CH"
source: "/notes/independent-judgment/"
canonical: "https://jonashertner.com/notes/independent-judgment/"
content_id: "https://jonashertner.com/notes/independent-judgment/#post"
type: "article"
status: "current"
author: "Jonas Hertner"
published: "2026-07-27"
modified: "2026-09-07"
version: "2026-09-07"
citation: "Jonas Hertner, “A separate view of a dispute” (version 2026-09-07), https://jonashertner.com/notes/independent-judgment/."
---
# A separate view of a dispute
27 July 2026 · Revised 7 September 2026
> A consequential dispute may justify a second assessment: which assumptions support the case, what could change the outcome, and whether the proposed course still serves the client.
A second opinion can leave a client with two answers and no better way to choose between them. It earns its cost when it gives the client better grounds for a decision: an assumption tested, a material risk made clearer, or a reason to trust the existing advice.
A dispute needs a working theory: what happened, why it matters in law and how the case can be proved. That theory guides the choice of evidence and arguments. It must also survive new documents, an unhelpful witness or a change in the client’s priorities.
The lawyers conducting the case know its history, procedural constraints and the other side. An outside reviewer cannot quickly acquire that knowledge. Distance may make an assumption easier to question; it can also make an unfamiliar fact look like an overlooked one. The existing team needs a fair opportunity to explain its reasoning.
## When a transaction becomes a dispute
The lawyers who advised on a transaction know what the parties intended and why the documents took their final form. When the relationship breaks down, that knowledge remains valuable. A separate reader can examine how a court or counterparty might understand the same documents without having shared those intentions.
The review can focus on how well the present position holds up. It need not reopen every choice made during the transaction. The same exercise can help before conflict, while a notice, side letter or set of minutes can still be clarified.
## The case and the decision
A strong case does not, by itself, answer whether to pursue it. Years of cost, distraction, uncertain recovery or damage to a relationship may outweigh the claim. The useful question is the choice now before the client: whether to bring, defend, continue, fund or settle the matter.
Two advisers may agree about the law and evidence yet recommend different courses because they assume different tolerances for cost or risk. They may also be answering different questions: whether a claim could succeed, or whether pursuing it serves this client. Establishing that difference can be more useful than commissioning another opinion.
## What a separate view tests
Start with what must be true for the claim or defence to succeed. Distinguish what the documents establish from what a witness may say, what the lawyer infers and what remains unknown. Each material factual or legal proposition should lead to its supporting sources. Then identify which uncertainty could change the decision, and what obtaining better evidence would cost.
Where the assessments differ, put the disagreement beside its sources. Are the advisers working from the same material? Which fact, legal proposition or inference separates them? Each should explain what would change the assessment. Some differences will survive that exchange. The client then needs to understand how each view affects the available choices, rather than receive a compromise conclusion that neither adviser can support.
Suppose a company asks whether a newly found email should change its lawyers’ settlement recommendation. The email seems to show that the other party accepted defective goods. Read with the surrounding correspondence, it concerns a different delivery. The review finds no reason in this email to change counsel’s recommendation and ends there. The company can now decide without relying on an apparent admission that the record does not support.
A percentage of success would add little without a defensible basis. Scenarios may be more useful: the possible outcomes, their costs and the assumptions behind them. The written answer should make the few points that matter intelligible without requiring the client to retrace the entire file.
## Scope and limit
A reviewer can feel pressure to reassure the person who commissioned the work, demonstrate value by finding fault, or secure a further role. Those incentives deserve examination alongside the existing team’s attachment to its position. A defined question and endpoint help contain the review; its conclusions still have to withstand challenge.
The written answer should identify the material received, how it was selected, what was excluded or unreadable and whose account remains untested. The reviewer’s role should be clear to counsel. An ill-defined parallel mandate consumes time and can obscure who is responsible for the next step.
If the stakes and uncertainty do not justify the additional work, there is no reason to commission it. A useful second assessment leaves the client able to explain the decision, the disagreement that remains and what would justify reconsidering it.