1 PerspectiveNovember 7, 2008

Better Settlements From Better Information: Early Case Assessments IV

“You can pay them, or you can pay me.  But don’t pay us both.”  My friend Robert Manley told me that as we sent him a new lawsuit a few years ago, and his quote sums up one of Early Case Assessments’ biggest benefits.  As we have discussed before, getting your ECA done — gathering the information required by the Early Case Assessment Checklist discussed in Part II and Part III of this series — requires an up-front investment.  This post will tell you why, if you plan to settle your case, a thorough Early Case Assessment will be worth that investment.

Better Settlements Through Early Case Assessments

I have settled cases I didn’t know enough about and I have settled cases after Early Case Assessments, and I’m confident I got better deals in the disputes I knew more about.  The settlement value of your case should have nothing to do with the other side’s opening settlement demand, and I like to know what that value is before settlement discussions start.  Early Case Assessments are the best way to get there.

ECAs drive better settlements through better information and the savvier strategies that result from that information.  Here are a few reasons why you’ll be happier with your next settlement if you do an Early Case Assessment first:

Better Information Through Early Case Assessments:

• You’ll know what additional information you will need — from your own client and from the other side — before settlement discussions begin;
• The realistic budget that results from your Early Case Assessment may impact your client’s settlement position;
• Your client can’t, or won’t, get serious about settling the dispute until they understand the weaknesses in their case;
• You and your client will have an agreement on a reasonable settlement range before negotiations begin;
• Without the early settlement talks your ECA can drive (and the information you’ll share in those discussions), the other side will invest unnecessarily in the dispute as the case rolls on — and, like it or not, the other side’s investment in the case often determines what they will settle it for;
• What you learn about your dispute through your Early Case Assessment will give you a confidence that can’t be developed any other way; and

Savvier Strategies Through Early Case Assessments:

• You’ll know when to seek settlement discussions (and when not to);
• You can tailor strategic discovery designed to lead the other side to its own weaknesses (another example of managing your opponent’s expectations early, as we discussed in a previous post);
• You’ll know what to say, and how to say it, as settlement discussions begin;
• You’ll know which of the other side’s sensitivities — bad facts, financial needs, reputational concerns, and more — to emphasize as the negotiations proceed, whether they have anything to do with your case or not;
• As Nancy Hudgins has told us, the appearance of preparation that results from your ability to focus on detail may give your client’s settlement position more credibility with the other side;  and
• You’ll know more about what your dispute is worth to the other side, and you’ll be in a better position to get there at every step in the process.

As our friends in the DuPont Legal Department make clear, an effective Early Case Assessment program can drive better settlements.  And if your Early Case Assessment doesn’t help you settle your case, Part V of this series will tell you why a thorough ECA is a good investment anyway.

Who Is Wrong If You Can’t Agree on the Value of Your Case?

I’ll leave you with one final thought about valuing your dispute:  If you and the other side value the case differently, at least one of you is wrong.  Make sure it isn’t you.

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

Categories: ECA,Miscellaneous,Negotiation,Settlement,Strategy,Tactics

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