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

Add Your PerspectiveOctober 17, 2008

How Do You Settle Halfway? Settlement Structures Part II

In You Can Win by Settling Halfway:  Settlement Structures Part I, we discussed when it might pay to settle halfway — when you might resolve parts of a dispute to “streamline the matter, limit expenses, and refocus the parties on resolving what’s left.”  While Part I outlined several high-level examples of how it works in theory, here’s a successful example to demonstrate how settling halfway can work for you.

What’s Really in Dispute?

I got called into a dispute between my client at the time and a recently departed executive.  The former executive disagreed with the compensation he was paid as he left.  Like many claims involving former execs, the stakes were high, and the emotions ran higher.  Both sides wanted to prove that they were right, and the case would not settle.  Once I really understood each side’s position — on the facts and in the broader context — an opportunity to settle halfway began to emerge. More…

Categories: ADR,Arbitration,Settlement,Strategy,Structures

1 PerspectiveOctober 14, 2008

The Most Important Word in Negotiation

High-stakes deals attract some of the best negotiators, and it’s always fun to see the latest techniques in action.  Many of the most sophisticated dealmakers and lawyers are eager to show that they’re on the cutting edge of the negotiating game, impressing their clients with advanced moves from Getting to Yes to Start With No to countless others.  Sadly, they often miss the point.

Why Credibility Is Critical to Negotiation

Somehow the audience for all our efforts is forgotten. No matter how little we actually see one another, negotiation still happens between people.  People take positions, people make decisions, and people close deals.  And much of what they do results from what you say and do. More…

Categories: Communication,Fundamentals,Negotiation,Settlement