3 PerspectivesOctober 22, 2008

Easier Said Than Done: Early Case Assessments Part I

Let’s face it:  new lawsuits rarely come at convenient times.  At the outset, they are rarely anyone’s first priority.  Soon enough, legal wrangling sets in — deadlines approach, extensions are brokered, and the plaintiff’s perspective advances unrefuted.  The case becomes a problem everyone seems willing to pay $50,000 a month for until they’re ready to deal with it.

There is a better way.

An Important Lesson from the Plaintiff’s Perspective

Some of the most important lessons I have learned about litigation came from the contingent-fee plaintiffs’ cases I handled before I went in-house.  Investing your own money in someone else’s case drives efficiencies that I have discussed before here and here, and we could all learn a lot from the pre-litigation discipline that large-scale contingency fee cases require.

I’ll never forget one great new prospective case we got, with trade secrets, market share and corporate profits at stake.  We interviewed witnesses, reviewed the documents and researched the law, and the case looked more than promising.  Almost anyone else would have filed a lawsuit at that point.  But on the cusp of our own multimillion dollar investment, we reviewed it again.  More documents, more research and more investigation followed.  Like many lawyers who grew up on the defense side, I had never seen so much work go into a case early on, but we wouldn’t invest in the case unless we were sure.

Our in-depth review revealed much more about the case; important questions emerged but, on even further review, satisfactory answers did not.  The firm walked away from the case.  While I didn’t realize it at the time, I had just seen first-hand the efficiency that Early Case Assessment can bring — no matter which side of the docket your case is on.

What Is an “Early Case Assessment Program”?

Early Case Assessments can impact when — and how — cases get resolved, whether by settlement or through the courts.  And if they are done right, ECAs can eliminate the carrying costs of litigation as usual.  According to early ECA pioneer DuPont, “ECA methodology has been a cornerstone of DuPont’s success in reducing its docket, its legal defense budget and in reaching faster and better resolution of lawsuits”; more on their successful use of ECA can be found on the DuPont Legal Model website.

“Early Case Assessment” doesn’t mean the visceral reaction you get when you read a newly served complaint, and it’s not what most people do when they claim they have an Early Case Assessment program in place.  There’s no shortage of articles on how great ECA is, but few sources offer practical advice on how to implement an Early Case Assessment program.  I’ll try to change that by exploring ECA in five parts:

• What Early Case Assessments are in Part I;
• The Early Case Assessment checklist in Part II;
• Putting the Early Case Assessment checklist into action in Part III;
• Early Case Assessments’ impact on your settlements in Part IV;
• Additional benefits of Early Case Assessments in Part V; and
• Additional Early Case Assessment techniques in Part VI.

Know 80% of What You Will Ever Know in 60 Days

So what, exactly, is “Early Case Assessment”?  The Law Department Management Blog quotes 2 lawyers who define ECA as “making a concerted effort to complete all the major work within the first 90 to 120 days of a lawsuit’s filing.”  In one of the best summaries of ECA available, Stephen M. Prignano recommends “front-loading” case preparation within 3 to 6 months of the inception of litigation in his In-House Defense Quarterly article.

I agree that an Early Case Assessment should be done quickly, and I believe ECAs need to be completed within two months.  What’s magical about the first 60 days?  What can you know in just two months?  Schering-Plough lawyer P.D. Villareal, quoted on the College of Law Practice Management Blog, says that “in 60 days . . . you will know 80 percent of what you will ever know about a case” with an effective Early Case Assessment.  While the amount of time ECAs will take may vary, the ultimate goal of an Early Case Assessment — an understanding of the case and a strategy consistent with that understanding — remains the same.

The ECA Program, Defined

While more prolonged approaches to ECA will work in many contexts, I have always looked for something a little quicker, with a focus on the tasks that will provide the most insight at the lowest cost — rather than do it early, I would prefer to avoid “all the major work” on a case if I can.

For me, the definition of an “Early Case Assessment program” is a disciplined, proactive case management approach designed to assemble, within 60 days, enough of the facts, law, and other information relevant to a dispute to evaluate the matter, to develop a litigation strategy, and to formulate a settlement plan if appropriate.

Now that we know what Early Case Assessment means, we’ll introduce the Early Case Asssessment checklist in Part II of this series and explore how to implement it in Part III.

[Editor's Note:  Settlement Perspectives' full series on Early Case Assessments is available here.]

Categories: ECA,Fundamentals,Miscellaneous

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