Cost-Benefit Analysis and Third-Party Opinion Practice

Abstract

Practitioner literature and bar association reports frequently exhort lawyers and clients to use cost-benefit analysis (CBA) to answer important questions about third-party closing opinion practice, including whether to have an opinion in a given transaction at all. Yet, this literature rarely considers seriously what is meant by cost-benefit analysis, or whether it is in fact an appropriate decision tool in this context. This essay fills that gap, by examining what CBA can - and cannot - do for third-party closing opinion practice. Among its benefits, CBA should help to orient discussions about whether to have a closing opinion around an opinion's economic and informational value, rather than claims that an opinion is (or is not) traditional or market in a particular context. But, CBA is an imperfect tool. Cost-benefit analyses can be manipulated to mask costs or to exaggerate benefits. More fundamentally, CBA may treat ethically questionable practices as cost-justified, and may fail to account for certain important professionalizing benefits of closing opinion practice. The essay suggests ways that CBA can and cannot help to improve closing opinion practice.