Proactive Litigation Case Assessment


Many corporations have implemented early case assessment programs. Early case assessment is a process for evaluating and planning litigation--one designed to reduce cost while maintaining and even enhancing quality. Trial lawyers drive to win lawsuits--perhaps no longer at any cost, but still at any price. The client who pays the bills, however, is more likely concerned with a cost-effective resolution to a business problem. While that could mean litigating a case through judgment, it might also mean an early resolution for settlement, mediation, arbitration or other means.

Early case assessment is not a settle-at-any-cost mentality. Rather, it represents a paradigm shift--from processing lawsuits to resolving business problems. Early case assessment helps define what it means to win the case and to charter an appropriate litigation strategy designed to meet both the business and litigation objectives.

Under early case assessment, trial lawyers must be focused rather than exhaustive--prioritizing information, gathering and evaluation. Collecting and evaluating a significant amount of information in the earlier stages of a lawsuit could be expensive.

Effectively assessing a lawsuit costs money, but this front loading of expenses is an investment that should yield real benefits, not the least of which is an informed judgment about which cases require the greatest attention and resources. Clients need to be active participants in the litigation process, with their goals considered early and throughout a lawsuit. Early case assessment process results in better litigation management and more efficient, focused lawyering. It can be a vehicle for planning and controlling the direction of the lawsuit and for matching efforts and experience to its complexity, size and importance.

Early case assessment also encourages realistic and fair-value billing arrangements. The early case assessment process is a collaborative exercise among the in-house litigator who manages the lawsuits; the commercial attorney who advises the clients; and each clients legal representative (a high-level business person who works with the legal department). Their respective roles and responsibilities are critical to the success of early case assessment process. All must work together in an integrated cooperative way.

Some corporations have adopted a very structured case-assessment program, based on the use of one or more detailed checklists. These checklists are a compendium of various legal and factual factors applying to a given lawsuit.

At the other end of the spectrum are assessments that are more qualitative and less standardized. For some of these companies, early case assessment is more closely tied to settlement prospects. The goal is to determine whether to favorably settle a case within a set period of time. If a case cannot be disposed of within that time frame, then it is pushed aggressively to trial.

Both in-house counsel and outside counsel must embrace the early case assessment initiative and begin using it in their day-to-day practice. Lawyers must broaden their thinking. Concepts such as cost-benefit and prudent risk taking must not be just words in their vocabulary, but part of their thinking and the actions they take on behalf of their clients.

Clients operate according to business methods: they identify an opportunity (market, product, etc.), analyze options, evaluate risks, develop a strategy, assign resources, measure results and reiterate the process. Lawyers must think the same way. Early case assessment is a step in the right direction.






Provided as an educational service by John Raymond Dunham, III, Esq..

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This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.