From John DeGroote’s Settlement Perspectives
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.
My approach to ECA seeks each of the 15 items listed below, with 2 caveats: (i) in some cases a few of these items will be better discussed at a high level than circulated in written form; and (ii) the level of formality required for any of these is up to you.
My Early Case Assessment checklist includes:
a. The Facts
b. The Law
c. The Forum, Your Opposition and More
d. The Plan
This list might sound like a lot, and it is — but it’s nothing more than your case will require, at some point, in the future. I outlined in Part I how I came to truly understand that a client and its lawyers are about to invest effort, money and years in a case, with choices to be made and risks to be taken along the way. I have had critical facts turn against me midway through a case, and I’ll be you have, too. Wouldn’t you rather know before the case that Mr. Smith will say the light was red? Or that Ms. Smith has notes to prove that nobody intended to form a partnership at that meeting?
If done right, an Early Case Assessment program can be well worth the time, effort and money it will require. How to implement the Early Case Assessment will be the topic of Part III of this series, and we will explore what you’ll actually get from a good ECA in Part IV and Part V.
I welcome comments on this or any post. Please feel free to comment using the “Add Your Perspective” link above, whether you use your actual name or pseudonym. If you don’t feel comfortable commenting directly on this site, I can easily be reached by email at jd[at]johndegroote[dot]com.
"This article originally appeared in Track Two (Vol. 8 No. 1 July 1999) , a quarterly publication of the Centre for Conflict Resolution and the Media Peace Centre (South Africa)."...By Lesley Fordred Green