Add Your PerspectiveOctober 28, 2008

Putting the Checklist into Action: Early Case Assessments Part III

In Part II of this series we outlined the 15 elements of the Early Case Assessment checklist, but a checklist alone isn’t enough.  How an ECA works in practice — actually getting what’s on the ECA checklist done — isn’t quite the paint-by-numbers exercise it might seem to be.  The following are 4 important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.

1.  Agree on the Goal

The logical starting point for any case assessment is to gather the facts, but I have learned the hard way that a quick dash for the facts isn’t really where to start.  Since the effort will require information, documents and cooperation from a number of people, the first step in an Early Case Assessment is to educate witnesses and stakeholders immediately that delay is no longer the strategy. Whether the client is a first-time litigant or frequently defends cases, everyone involved needs to understand that the company will be giving management, or the firm will be giving its client, a full report on the case by January 12th (or whatever date you pick). We won’t be waiting for three months for the “legal wrangling” this time. More…

Categories: Communication,ECA,Fundamentals,Miscellaneous

3 PerspectivesOctober 24, 2008

The Early Case Assessment Checklist: Early Case Assessments Part II

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: More…

Categories: ECA,Fundamentals,Miscellaneous

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 More…

Categories: ECA,Fundamentals,Miscellaneous