From John DeGroote’s Settlement Perspectives
In Part II of this series we outlined the 15 elements of the Early Case Assessment checklist, but a checklist alone isn’t enough. How an ECA works in practice — actually getting what’s on the ECA checklist done — isn’t quite the paint-by-numbers exercise it might seem to be. The following are 4 important ideas, admittedly based on mistakes I have made, that will make your ECA efforts more effective.
The logical starting point for any case assessment is to gather the facts, but I have learned the hard way that a quick dash for the facts isn’t really where to start. Since the effort will require information, documents and cooperation from a number of people, the first step in an Early Case Assessment is to educate witnesses and stakeholders immediately that delay is no longer the strategy. Whether the client is a first-time litigant or frequently defends cases, everyone involved needs to understand that the company will be giving management, or the firm will be giving its client, a full report on the case by January 12th (or whatever date you pick). We won’t be waiting for three months for the “legal wrangling” this time.
If your assessment is going to be effective, it will require cooperation between knowledgeable people working for the client and trial counsel — this isn’t something for the lawyers to go off and do. The entire team must understand that objective evaluation, not planning our side of the case, is our primary goal. The assessment will come from an initial pull of the relevant documents, interviews of more than a few witnesses, targeted legal research, and — often — a second review of the documents, a few follow-up interviews, and another look at the research once you have a better idea about the case and where it’s going.
One of the most neglected elements of ECA is project management, best maintained through a regularly updated Action Item List — a list that clearly states who will do what by when (and occasionally how and where they will do it), with regular updates to the Early Case Assessment team on what is getting done and what isn’t. I have had the good fortune of working on several large cases under effective project managers, and I have learned a document that leaves your individual “to do” on a list distributed to the entire team — highlighted as “late” until your task is done — creates enough peer pressure and accountability to complete most tasks. More on project management is beyond the scope of this site, but I will say that I learned more from the first few pages of Project Management for Dummies than I would care to admit.
One Friday morning before a long weekend I scheduled a whiteboard session with one of my most trusted counsel on an ugly case that was going nowhere. After 3 hours with caffeine and a whiteboard — and without laptops or telephones — we had worked through a serious problem in the other side’s case and how to exploit it. We achieved a great settlement using this new “discovery” shortly thereafter. Based on this productive morning and dozens like it since, I believe the most important ingredient to an effective case assessment is time to think — time to actually think about the case. It’s easy to say that the other side is irrational. Yet the fact that you can’t figure out why they have made the choices they’ve made doesn’t necessarily mean they don’t know what they’re doing. It’s up to you to take the time to actually think, and ask: “Why did they . . .?” and “Why don’t we . . .?”
If done right, an Early Case Assessment program can be well worth the time, effort and money it will require. What you’ll actually get from a good ECA will be the topic of Part IV and Part V of this series, and Part VI will show you a couple ways you can take your Early Case Assessment to the next level.
Michelle LeBaron expresses her thoughts on why the mediation field may be more ethno-culturally diverse in Canada than in the United States.By Michelle LeBaron