Early Case Assessment Resource Checklist

Transcription

1 Early Case Assessment Resource Checklist How important is early case assessment? As today s corporations work to manage litigation costs and improve outcomes, early case assessment (ECA) is taking on an increasingly critical role. ECA helps litigation teams answer questions like these: What are the strengths and weaknesses of this case (the allegations, alleged damages, opposing counsel, discovery problems, etc.)? Should we file, settle, go to trial or pursue another course of action? If we decide to pursue settlement, what is a reasonable settlement range? What is the average range for verdicts? Major Elements of Early Case Assessment 1. Case or matter identification and communication with in-house counsel 2. Informal fact development 3. Legal analysis 4. Risk management analysis 5. Cost/benefit analysis 6. Going forward strategy More and more legal teams find that adopting a systematic early case assessment approach helps them deliver more value to their organizations. With that in mind, LexisNexis has worked with the International Institute for Conflict Prevention and Resolution (CPR) and consulted guidelines drafted by CPR s Corporate Early Case Assessment Commission to develop this resource checklist, organized according to the ECA phases listed to the right.* On the following pages, you will see ECA phases divided into steps and matched with specific tools to help you streamline assessment of your cases and ensure you are not missing anything critical. To get the most out of this checklist, use the space on each page to record details for your own case. THE TEAM In-house Counsel: Outside Counsel: Business Unit Responsible: Business Unit Contact: *All information provided in this document is general in nature and is provided for educational purposes only. It should not be construed as legal advice. For legal advice applicable to the facts of your particular situation, you should obtain the services of a qualified attorney licensed to practice in your state.

2 RECOMMENDED TOOLS AND RESOURCES CaseMap case analysis software: Create an initial Cast of Characters list. CourtLink Alerts: Set up nature of suit and jurisdiction-specific Alerts on the assigned judge, opposing counsel and other parties to uncover similar cases that may be relevant to the development of your case strategy. LexisNexis Alerts: Receive or online updates on news and business developments related to the issues of your case. Shepard s Alert : Stay on top of new decisions and changes in the precedential status and treatment of related cases. 1. Case or Matter Identification and Communication with In-House Counsel Describe case or matter (type of case/practice area, key issues, etc.). Consider whether this case raises legal, public relations, technical, political or other significant types of issues for the client. Identify the case or matter s stage of development (e.g., has litigation or arbitration been filed/initiated?). Determine contractual requirements. Identify and counsel team. List named defendants (parent or subsidiary, officers, directors, customers, vendors, etc.). Set up automated Web or Alerts, if desired, to keep the team up-to-date on filings and relevant news developments.

3 2. Informal Fact Development Review internal documents. Conduct informal interviews with company contacts and other lawyers who have knowledge of the matter. Identify witnesses, their locations and potential roles. Consider needed information not yet obtained and ways to acquire it. To assist you with this process, CPR has crafted: 1. A detailed, step-by-step guide for users who are less familiar with the concept of ECA and are seeking a comprehensive analytical model. RECOMMENDED TOOLS AND RESOURCES Lexis Search Advantage: Quickly find and validate relevant internal work product and external resources via lexis.com for effective planning and document drafting. CaseMap case analysis software: Complete the CaseMap Client Intake Interview Jumpstart form and import it into your CaseMap case file. Create Cast of Characters list in CaseMap. Review effective fact patterns and analysis used to achieve positive outcomes in similar cases you have managed. Create an issue outline. Evaluate and sort facts by disputed vs. undisputed, material vs. immaterial, for us vs. against us, etc. 2. A short Executive Summary form for sophisticated users who are familiar with the elements of the ECA process. You can easily download these tools from CPR s website: or directly access the detailed Corporate Early Case Assessment Toolkit.

4 RECOMMENDED TOOLS AND RESOURCES LexisNexis Verdict & Settlement Analyzer: Gain insight into success factors, access meaningful visual analytics, assess the jurisdiction, and quantify judgments and awards. Expert witness content via lexis.com: Count on published and unpublished depositions, jury verdicts, settled cases, courtroom transcripts, the Daubert Tracker, public records, biographies and IDEX expert witness documents to help you locate, select or discredit expert witnesses. LexisNexis Expert Witness Profiles: Gain the ability to discredit your opponent s expert and evaluate a potential expert witness all from one report. Drawing from the largest collection of expert witness information, Expert Witness Profiles will give you quantitative and qualitative information, as well as visual analytics to help you make sound decisions. LexisNexis Company Dossier: Get business background on corporations including structure, strategic direction and financial information. Reports draw on sources covering 43 million public and private companies, 58 million executives and more than 1,000 U.S. industries. LexisNexis Analyzer: Gain initial background intelligence on defendants, judges, attorneys, expert witnesses, arbitrators and companies from multiple public records and news sources in one report. CourtLink Strategic Profiles: Uncover the litigation history, judgment data and trends of an opposing party, attorney and judge assigned to a case. Draw from a comprehensive collection of state and federal court records. Other relevant content via lexis.com: Easily find relevant cases, codes, practice guides, journals, news, public records and more that may impact your case. LexisNexis Total Litigator: Go to one convenient interface for access to case law, depositions, transcripts, expert witness resumes, court dockets and documents, surveys of multijurisdictional rules and regulations with analysis, briefs, pleadings and motions, and a variety of litigation tools. Send to CaseMap links: Easily send all relevant findings from the tools above to CaseMap so that all vital case information is at your fingertips. 3. Legal Analysis Conduct legal investigation, including statute of limitations, jurisdictional issues, legal issues, case law and legal obstacles. Analyze key players, such as potential experts you may wish to retain for your side, plus judges, opposing counsel, litigants, etc. Investigate facts, including background details, chronology, cast of characters, relevant documents and inconsistencies. Consider claims and defenses. Assess potential damages. Assess venue.

5 4. Risk Management Analysis Gather and collect relevant information prior to production or review to gain key insight into the size and scope of discovery documents. Examine past, similar cases to help determine the level of risk or opportunity for your case. Place and manage legal hold on potentially responsive documents (paper and electronically stored information). Determine if parties of claim are insured, whether applicable policies have been located and whether notice has been set to all carriers potentially on the risk. RECOMMENDED TOOLS AND RESOURCES LexisNexis Verdict & Settlement Analyzer: Uncover level of risk or opportunity associated with a particular suit by evaluating similar past cases and jurisdictions from a single, aggregated source using helpful visuals and the largest collection of verdicts and settlements. LAW PreDiscovery software: Efficiently pre-review and cull non-responsive data from your e-discovery and scanned documents prior to full review and processing. LAW PreDiscovery helps you quickly assess the amount of discovery in a case. LexisNexis Early Data Analyzer: Save time and storage costs and avoid the risk of corruption that can otherwise occur during data transfer. Analyze a reduced set of discovery documents to determine potential risk.

6 RECOMMENDED TOOLS AND RESOURCES LexisNexis Verdict & Settlement Analyzer: Assess risk, quantify judgments and awards and identify potential settlement values. CaseMap case analysis software: Review case facts collected in one place for clear analysis. TimeMap timeline graphing tool: Transform litigation details into visual timelines to uncover factual gaps and inconsistencies that may contribute to risk or potential success. LexisNexis Early Data Analyzer: Reduce the amount of data that needs to be stored, processed and ultimately reviewed at the earliest possible point translating into substantial cost savings. 5. Cost/Benefit Analysis Define business success. Quantify risks and opportunities. Assess disposition strategies and costs. Determine the value of the case by consulting similar case verdicts, settlements and resolution time frames, plus jurisdictional analysis. Estimate and minimize document review costs. TIP: Consider drafting a decision tree or similar analysis to strengthen your cost/ benefit analysis. For more information and a guide to best practices in decision-tree analysis, we recommend the April 2010 article from Alternatives to the High Cost of Litigation entitled Beyond Decision Trees: Determining Aggregate Probabilities of Time, Cost, and Outcomes.

7 6. Going Forward Strategy Determine settlement or litigation strategy. Complete executive summary. Secure resolution authority. Conduct cost-effective discovery management. Evaluate trial strategies and define likely stages. For more information call and enter promo code or go to RECOMMENDED TOOLS AND RESOURCES LAW PreDiscovery: Reduce costs and gain greater control over discovery from the outset by culling non-responsive data before discovery review. Concordance discovery management software: Search, review, organize and share litigation documents scanned paper, and other e-discovery including foreign language documents. Concordance FYI : Search, organize and analyze litigation documents and collaborate securely via the Web. The CaseMap suite: CaseMap enables you to identify and link facts, legal issues and parties involved in each case, and store them in specialized relational spreadsheets for ready access, analysis and reporting. Flexible filtering helps you see how any person, fact or issue relates to the other elements of your case. TextMap transcript management software generates a searchable database of electronic transcripts from case depositions, examinations and other proceedings. Send transcript summary passages directly from TextMap to CaseMap. TimeMap makes it easy to produce legal timeline visuals for exhibits at mediation and trial, and then send those timelines to CaseMap. lexis.com: Search and validate case law and gain guidance from authoritative treatises. Send information to CaseMap. LexisNexis Total Litigator: Access multiple products organized around the daily tasks of litigators. Send facts to CaseMap. LexisNexis, Lexis, lexis.com, Shepard s Alert and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. CaseMap, TimeMap, TextMap, CourtLink, Concordance and IDEX are registered trademarks and PreDiscovery and FYI are trademarks of LexisNexis, a division of Reed Elsevier Inc. Other products or services may be trademarks or registered trademarks of their respective companies LexisNexis. All rights reserved. NXC

8 About the International Institute for Conflict Prevention and Resolution The International Institute for Conflict Prevention and Resolution (CPR) is an independent, nonprofit think tank that promotes innovation in commercial dispute prevention and resolution. By harnessing the expertise of leading minds in ADR and benchmarking best practices, it has become the resource of choice for multinational corporations with billions of dollars at risk. CPR is also a trusted and respected destination for lawyers seeking superior arbitrators and mediators and cutting-edge ADR tools and training. To learn more about CPR or for more information about its Early Case Assessment Guidelines, visit or contact info@cpradr.org. CPR s Corporate ECA Commission The International Institute for Conflict Prevention and Resolution (CPR) assembled a commission of leading corporate counsel, attorneys and academics to collaborate in the production of an Early Case Assessment (ECA) tool which could be used across a broad spectrum of commercial disputes. The organization gratefully acknowledges the members of its Corporate ECA Commission who contributed their expertise and insight to this project. Lawrence N. Chanen Patrick Lamb Julie S. Mazza Nancy L. Vanderlip JPMorgan Chase Valorem Law Group Citigroup Inc. ITT Corporation: Electronic Components Dan S. Dunham Professor John Lande Barbara McCormick Pfizer, Inc. University of Missouri School of Law Johnson & Johnson Jennifer Boyens Victor The Victor Law Firm Anurag Gulati Melanie Lewis Richard N. Papper General Mills, Inc. Coca-Cola Enterprises, Inc. Bank of New York/Mellon Thomas R. Woodrow Holland & Knight LLP J. Andrew Heaton Duncan R. MacKay Roland Schroeder Ernst & Young LLP Northeast Utilities General Electric Company CPR Staff: Kathleen A. Bryan Paula A. Johnson Deborah Masucci Beth Trent Cathy Cronin-Harris ConocoPhillips American International Group Inc. Schering-Plough Corporation Thomas L. Aldrich Janet S. Kloenhamer Patricia Caycedo-Smith Fireman s Fund Insurance Co. Duke Energy Corporation