3 PerspectivesOctober 24, 2008
In “Easier Said than Done: Early Case Assessments Part I” we defined an “Early Case Assessment program” as “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.”
Agreeing on a definition is one thing. Executing on it is another.
Individual approaches to ECA may vary, but the one thing I can tell you with confidence is what I look for in an Early Case Assessment. Whether it’s communicated in a notebook or in a meeting or at a presentation, I’m looking for that 80 percent of what I will ever know about a case we discussed in Part I — not just our side of the case or how we should win.
The Early Case Assessment Checklist
My approach to ECA seeks each of the 15 items listed below, with 2 caveats: (i) in some cases a few of these items will be better discussed at a high level than circulated in written form; and (ii) the level of formality required for any of these is up to you.
My Early Case Assessment checklist includes:
a. The Facts
- A Claims Summary: An executive summary of the plaintiff’s claims and the defendant’s response;
- The Other Side’s Position: The complaint, demand letter, response, or whatever you may have containing the other side’s position and perspective unfiltered and in their own words;
- A Timeline: A timeline showing the relevant facts and key dates, linked to supporting documents;
- Interview Summaries: Summaries of, and witness evaluations from, all key interviews, including interviews of witnesses that might not be friendly;
- The Documents: The 10 best documents for each side of the case;
- Your Experts: A summary of expert testimony required or desired and likely candidates to serve as consulting and testifying experts;
- The Themes: A concise statement of each side’s likely themes;
b. The Law
- The Jury Charge. A draft jury charge;
- A Summary of Legal Issues. A summary of additional legal issues and likelihood of success of legal motions (such as motions for summary judgment);
c. The Forum, Your Opposition and More
- A Venue Analysis. A memo evaluating the court, the jury pool, past verdicts in similar cases, and the applicable appellate court’s rulings on similar issues;
- The Opposition. A memo analyzing opposing counsel, his/her team, his/her trial experience and any cases of note;
- Other Circumstances. A memo highlighting other circumstances affecting all parties and stakeholders (customer impact, potential for similar cases, etc.);
d. The Plan
- Your Strategy. An outline of the case strategy — and recognize that formulating this strategy must be an interactive process between counsel and client;
- The Budget. A realistic budget to take the case to (and through) trial, including relevant assumptions, a case timeline, and any potential for an alternative billing arrangement; and
- A Settlement Plan. A settlement plan and supporting analysis.
This list might sound like a lot, and it is — but it’s nothing more than your case will require, at some point, in the future. I outlined in Part I how I came to truly understand that a client and its lawyers are about to invest effort, money and years in a case, with choices to be made and risks to be taken along the way. I have had critical facts turn against me midway through a case, and I’ll bet you have, too. Wouldn’t you rather know before the case that Mr. Smith will say the light was red? Or that Ms. Smith has notes to prove that nobody intended to form a partnership at that meeting?
If done right, an Early Case Assessment program can be well worth the time, effort and money it will require. How to implement the Early Case Assessment will be the topic of Part III of this series, and we will explore what you’ll actually get from a good ECA in Part IV and Part V.
[Editor's Note: Settlement Perspectives' full series on Early Case Assessments is available here.]