Settlement Perspectives

Thoughts on how to resolve disputes and get your deal done.


3 PerspectivesNovember 11, 2008

Better Docket Management Through Early Case Assessments: ECAs Part V

Early Case Assessments drive better settlements — we discussed why in Part IV, but we haven’t talked about whether an Early Case Assessment is a good idea if you don’t plan to settle. If yours is the lawsuit sure to go to trial, does an ECA still make sense? I think you know the answer.

It takes time, effort and money to make your way through the Early Case Assessment Checklist, but Early Case Assessments mean better case management — and more responsible docket management — even if your case goes the distance. This post will highlight how you’ll save money, and ultimately get better results overall, with Early Case Assessments whether you settle or not.

Better Case Management from Early Case Assessments

When you do an Early Case Assessment you’ll see an immediate return on the up-front investment it required in more than a few ways:

Better (and Cheaper) Discovery from the Outset

  • You’ll know what discovery to ask for;
  • You’ll know what areas to avoid in discovery because you don’t want the other side to become educated in those areas;
  • You’ll know what noncontroversial facts to ask the other side to stipulate to, which will eliminate discovery on those points;
  • You won’t be seeking any discovery on claims or defenses you have decided to abandon;
  • Your timeline and the demonstrative exhibits you prepare during your ECA can be used to prepare and examine witnesses during discovery; and
  • Your employee witnesses are less likely to have moved to another job if you interview them early in the case, and their memories of the facts are more clear.

More Disciplined Case Management

  • You’ll be able to identify areas that aren’t worth pursuing — because there are stones that can be left unturned;
  • You’ll be in a better position to negotiate an alternative fee arrangement for the rest of the case — an idea described in more detail in an In-House Defense Quarterly Article by Stephen M. Prignano;
  • You’ll learn about areas that may require the help of a consulting or testifying expert — and you can bring her into the case before the last minute this time;
  • Your knowledge of the case will enhance your credibility among witnesses and clients as the case is being prepared, whether you are trial counsel or in-house counsel; and
  • Your client is more likely to treat the “big case” like the important matter it is if it’s identified early (assuming your client doesn’t settle the matter when they learn how significant it actually is).

Better Business Results Outside the Legal Department

  • Your CEO and the rest of your management team will spend less time on a well-managed case;
  • Your clients will be happier, since ECA encourages lawyers to “define and consider [clients'] goals earlier and throughout the case” (according to DuPont’s Silvio DiCarli in an Association of Corporate Counsel presentation);
  • You’ll have a better idea about what you will spend, and when you will spend it, on your case (and the CFO always appreciates this);
  • The client may learn — at the outset of the case instead of years down the road — of necessary changes to its products, processes or conduct that will help it avoid future litigation (a concept described in more detail by Eric L. Barnum in An Introduction to Early Case Assessment);
  • You are better prepared for any public relations fallout that may result from your case (as discussed more fully in Stephen M. Prignano’s Article);
  • As mentioned in a recent Buffalo Business First article, when early settlements are reached, trade secrets and sensitive company data are never produced;  and
  • Insurers will appreciate your responsible docket management and proactive risk reduction efforts whether this specific case is settled or not, which can lead to lower premiums and happier insurers.

Docket Management:  Objective Measures of ECAs’ Benefits

While the points above make it clear that Early Case Assessment is worth the investment, it’s hard to say exactly how much a good ECA is worth in any case. No matter how convinced I might be of ECAs’ benefits, I have heard more than one in-house lawyer say that “you are what you measure.” Fortunately the DuPont Legal Team had the same thing in mind when it posted objective measures of its results on the DuPont Legal Model Website.

“The DuPont cases where ECA was rigorously followed resulted in higher satisfaction from the business unit, faster cycle times and an average of 28 percent less cost” according to Metrics for Success in DuPont’s Legal Risk Analysis, appearing on the DuPont Legal Model Website. DuPont’s 28% savings finding inspired me to look for other ECA-driven data, and it’s out there. So for those not yet convinced I list a few objective statistics to quantify the benefits of Early Case Assessment programs, along with supporting links where available:

  • ECA and other initiatives allowed GE to reduce litigation costs from $120.5 million in 2002 to $69.3 million in 2005, according to a Corporate Counsel article discussed on The Wired GC;
  • “More than three-quarters of cases are resolved favorably, and litigation expenses [are] cut in half in all cases, when thorough early case assessment is performed,” according to a recent survey of 341 practicing litigators cited on Victoria Pynchon’s Settle It Now Negotiation Blog;
  • “Conducting early case assessment enables attorneys to reduce the litigation expenses in 50% of their cases on average,” according to a Cogent Research study cited in an Allbusiness Article;
  • ECA reduced costs at DuPont by 28%, as described on the DuPont’s Metrics for Success Article (although Rees Morrison challenges DuPont’s methodology to a degree on the Law Department Management Blog);
  • ECA and other legal management efforts at DuPont reduced the cycle time of litigation (from filing to resolution) from 39 to 22 months and the overall docket by half, according to an article from “The Metropolitan Corporate Counsel” available on the Reed Smith website;
  • More than half (57%) of surveyed attorneys felt that ECA assisted in their ability to prepare a more accurate litigation budget, according to the Cogent Research Study cited in an Allbusiness Article; and
  • Although I don’t have objective data to prove it, earlier settlements, reached as a result of your Early Case Assessments, can limit management time spent on litigation — and as Patrick J. Lamb reminds us, “there are virtually no businesses that are engaged in the business of litigation.”

Whether the benefits are obvious or subtle, objective or subjective, Early Case Assessments can drive better case management — and better settlements. As we discussed in Part I, good plaintiffs’ lawyers know where the case is going before it really gets started. Do you?

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

Categories: ECA,Miscellaneous

3 Perspectives:

Jon Hustis — Monday, November 17, 2008 3:59 pm

John – Thanks for all of the ECA articles. The ECA checklist is a useful tool for making pre-litigation and litigation claim assessment behave like a manageable, participatory business process. It allows focused, counsel-guided business team participation for generating needed information and for critiquing iterative early drafts of the case assessment. So, nonlegal business team members should be able to comment more effectively and reach buy-in more quickly on counsel-recommended negotiation and litigation strategies. What was strictly foreign territory more quickly becomes internal common ground. And, a general counsel or associate general counsel doesn’t need to be a full-time litigator to take early steps and get the checklist moving in the right direction. Great stuff!

Vickie PynchonMonday, November 17, 2008 7:02 pm

wow! What a great comprehesive post on super-charging a leean mean litigation team. Thanks for the shout-out and a month of good reading. Clients should also remember that their business goals should not get lost in the forest of legal issues. Similarly, litigators should remember that no factual issue is irrelevant to the dispute if their client believes it to be important. It’s not a legal problem. It’s a business problem burdened with injustice issues. Solve the injustice issues – whether or not they’re “at issue” and you’ll have some of the few clients who brag about what great results they got in litigation.

e-discovery 2.0 » Blog Archive » Electronic Discovery, EDiscovery, E-Discovery, Legal DiscoveryMonday, July 20, 2009 11:53 am

[...] Mr. DeGroote highlights, the two main benefits of ECA are: better settlements and better case management.  First, ECA enables the litigation team to make a better decision as to whether to settle or not [...]

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