Legal spend on litigation, through both indemnity and defense dollars, is constantly scrutinized by management. When approaching in-house legal on the topic, they often ask, “How do we manage these numbers better?” or “How do we get these numbers down without sacrificing results?” Development and consistent implementation of an early case assessment protocol is a solution that can be part of the answer to both questions.
What is early case assessment (ECA)? As a best practice, ECA applies business discipline to create a proactive case management approach designed to comprehensively investigate a dispute within the first 60 to 120 days in an effort to enable counsel to evaluate the matter, assess actual risk, and develop a comprehensive litigation strategy and settlement plan (if appropriate). Straight forward in concept, the development and implementation of an ECA protocol can be a challenge, particularly when dealing with multiple outside counsel. When done with regularity and consistency, however, many companies have seen proven results in the form of faster and better resolutions along with reductions in docket and legal defense costs.
3. Prepare an overview: Preparing an overview of the facts and issues serves as base camp for assessing value and developing the ultimate strategy for moving forward. In terms of content, the overview is an organized correlation of the facts and evidence to the issues identified. This overview helps to identify gaps that either require further investigation and research, or the remaining gaps that simply need to be considered when assessing value and developing strategy.
4. Assess dispute value: Being able to intelligently assess the true value of a case as a whole is a key goal of the preceding steps. In this phase, consideration must be given not only to the strength of the legal and procedural arguments, but also to the actual damages sustained, the applicable laws on and availability of apportionment, the availability of exemplary damages, the capabilities of the opponent, and the venue.