No client likes spending money on litigation, and companies are no exception – but when litigation costs appear out of control and unpredictable, the problem gets even worse. Cost containment and predictability in litigation are the name of the game. But clients and their lawyers often differ on how to approach disputes, which tools are the most effective, and how involved in-house counsel should be in litigation. This 3-part series will explore two specific litigation management tools, Early Case Assessment and Decision Tree Analysis, and several specific advanced settlement techniques in some detail. All are tried and true; the art is in applying the right tool to the right situation. Throughout, we give guidance on what situations work well with particular techniques.

Early Case Assessment (“ECA”) focuses on gathering a high volume of case information early on, with an eye to developing an informed understanding of the case before months and millions have been spent. It is defined 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.” See John DeGroote, Easier Said than Done: Early Case Assessments, Part I. The Law Department Management Blog quotes two lawyers who define ECA as “making a concerted effort to complete all the major work within the first 90 to 120 days of a lawsuit’s filing.” Inhouse counsel P.D. Villareal, quoted on the College of Law Practice Management Blog, says that with an effective Early Case Assessment, “in 60 days . . . you will know 80 percent of what you will ever know about a case.” ECAs require discipline and investment at the outset of the dispute, and include 16 specific elements.

A. The Early Case Assessment Checklist

1. The Facts
• A Claims Summary: An executive summary of the plaintiff’s claims and the defendant’s response;
• The Other Side’s Position: The complaint, demand letter, response, or whatever you may have containing the other side’s position and perspective unfiltered and in their own words;
• A Timeline: A timeline showing the relevant facts and key dates, linked to supporting documents;• Interview Summaries: Summaries of, and witness evaluations from, all key witness interviews, including interviews of witnesses
that might not be friendly;
• The Documents: The 10 best and worst documents for each side of the case;
• Your Experts: A summary of expert testimony required or desired for each side and likely candidates to serve as your consulting and testifying experts; and
• The Themes: A concise statement of each side’s likely themes.

2. The Law
• The Jury Charge: A draft jury charge; and
• A Summary of Legal Issues: A summary of additional legal issues and likelihood of success of salient legal motions (such as motions to dismiss or for summary judgment)

3. The Forum, Your Opposition and More
• A Venue Analysis: An evaluation of the court, the jury pool, past verdicts in similar cases, and the applicable appellate court’s rulings on similar issues;
• The Opposition: A memo analyzing opposing counsel, his/her  team, his/her trial experience and any cases of note;
• Your Insurance: An understanding of your policies and your carrier(s) and what you have to do to protect your coverage (See Insurance Coverage: 4 Rules and 10 Tips for Policyholders and “Bet the Company” Litigation from a Policyholder’s Perspective by John DeGroote and Wendy Toolin Breau); and
• Other Circumstances: An analysis highlighting other circumstances affecting all parties and stakeholders (customer impact, potential for similar cases, etc.).

4. The Plan
• Your Strategy: An outline of the case strategy—recognizing that formulating this strategy must be an interactive process between counsel and client;

• The Budget: A realistic budget to take the case to (and through) trial, including relevant assumptions, a litigation timeline, and any potential for an alternative billing arrangement; and

• A Settlement Plan: A settlement plan and supporting analysis if appropriate.

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Tags: Case Assessment, Early Case Assessment, John DeGroote