Early Case Assessment

Implementing a lean, efficient litigation approach is highly dependent on performing a proper early case assessment (ECA). At the end of the day, the alternative to a negotiated resolution of a dispute is proceeding to a jury verdict at trial. A party’s leverage to negotiate a favorable settlement derives from an opponent’s perception of how much adverse verdict risk they face in view of how that party has communicated they will present their case at trial. Put more simply, the greater degree to which an opponent feels they are likely to lose at trial, the easier it is to negotiate a favorable resolution.

The sooner a party’s counsel can sift through available evidence from witnesses and documents, correctly analyze the legal issues, select the appropriate experts and forensic theories that best support the underlying claims and calculate a range of probable damages, the better that party is positioned to determine the optimum intersection between all those elements that will best present the case at trial.

The discovery and motion practice can then be shaped and sequenced to communicate to the adversary the strengths of that party’s position.

Consider the following diagram:

In any matter the range of potentially ‘relevant’ information to the factual and legal issues in the case can be thought of as encompassing the full area of each of the colored ovals above. The quicker and more efficiently that counsel can zero in on the optimum intersection of elements from all those ovals that best presents the case, the sooner the client can dispense with the need to foot the bill for counsel to explore in depth the full range of each oval before deciding how the case might best be shaped to influence both an adversary’s perception and a jury’s determination.

In fact one of the major challenges of proper litigation management is the latitude and scope given to counsel to explore the full area of each oval before making recommendations to the client. Clients want litigation conducted efficiently. Law firms whether to perfect their recommendations, or clarify every gray area into black & white, or for other reasons often err on wanting authority to complete an overly comprehensive review of all potentially relevant areas.

Once an assessment and determination is made that the case can best be presented by a certain overlap and intersection of fact, forensic, and legal issues the litigation management plan (LMP) that evolves from that ECA has to focus on and recommend what resources are required to develop the required areas of concentration.

From a resource perspective, elements of the case to use a geology analogy can receive pebble, rock, boulder, hill, mountain, or asteroid treatment.

Again there is often tension between law firm and client as to how many case elements really need hill, mountain, or asteroid treatment as opposed to pebble, rock or boulder resource allocation.

The alternative fee arrangements offered by Brown Law LLC may be particularly suited to matters where the firm recommends a more expansive exploration of each of the pertinent ovals (facts from documents and witnesses, applicable forensic concepts, and legal principles) and a resource intensive treatment of a significant number of those case elements (in other words a tilt towards the hill, mountain end of the spectrum) as the firm’s willingness to share financial risk in the success of those recommendations may well bolster the confidence of clients in the recommended approach.

The early case assessment methodology includes the followings steps:

  • After collecting internal and external data, develop a ‘best case stated’ in light of witness interviews, document review, expert/forensic theories, and applicable law.
  • Work backwards from trial to develop themes that will best communicate the client’s position and expose strategic vulnerabilities of your adversary.
  • Formulate what selective discovery along a critical path is most likely to create leverage to achieve an optimum result, focusing on developing what is essential to prevail at trial.
  • Consider any pertinent related litigation, prior settlements, verdicts, and costs.
  • Review nature of opposing party and counsel, judge, jurisdiction, and any co-parties.
  • Formulate cost-effective contingencies to address potential motion practice and discovery issues, including electronic discovery options.
  • Give full consideration to client’s personal as well as business perspective taking into account potential business disruptions and impact on personal and business relationships.
  • Appraise impact of publicity and perception in wider community.
  • Explore the effect of adverse precedent either by way of verdict or settlement.
  • Compare litigation, ADR, and other settlement options and appropriate timing of each to achieve the desired best result.
  • Deliver a case evaluation and confer with client to confirm targeted best result and agree on fee options that will best control costs.