By Jeffery C. Fehrman
What is Early Case Assessment?
The process of Early Case Assessment (ECA) evaluates the risk in prosecuting or defending a legal case. The goal of ECA is to develop an early understanding of the case and begin formulating a strategy that is consistent with that understanding. Legal teams look at the facts and potential problems of a new case to form a strategy early on. ECA helps you make very early decisions, such as whether you are covered by insurance and which outside counsel should be retained based on the type of case. ECA also allows you to build a framework or outline to get you to the “finish line” of the case. It helps you prepare a strategy and either formulate a settlement plan or start to develop the storyline and themes associated with the matter. Various studies have shown that ECA, if performed correctly, not only reduces costs but also significantly increases the chances of achieving the most favorable outcome possible.
During ECA, law firms typically do most of the essential work within the first 60 days of the lawsuit being filed and throughout this process, electronically stored information (ESI), paper documents, and any other potential evidence are gathered. The goal of collecting this information is to determine case strategy, improve defensibility, identify the keywords and search terms relating to the legal matter, the amount of relevant data in a law firm’s possession, legal liability, and more.
What Does an ECA Program Look Like?
Early Case Assessment involves an array of different processes, but lawyers typically conduct custodian interviews early. Custodians are any person in possession of potentially relevant ESI, so they can help with document collection and can provide an overview of who is involved in the case, what are the important documents, where the data is, and the amount of data involved. Custodian interviews don’t involve a detailed analysis of the documents, but they do develop a big picture that can be a starting point for in-depth analysis. During this process, identifying the keywords related to the issues of the case in order to uncover important documents. Data analytics, another ECA process, turns thousands and sometimes millions of documents into usable information. Lawyers enlist the help of analytics to find data volumes, names, date ranges, domains, themes and key issues and turn this information into data sets.
Data sampling is another method of turning large volumes of data into useful insight. The idea behind data sampling is that a sample of documents is representative of the data as a whole, allowing lawyers to conclude how many potential relevant documents are in the collection of data. Then, reporting helps lawyers digest the key figures and actionable information and determines the risk and discovery costs of a case. After this process and once a firm has gathered and evaluated evidence, they typically meet-and-confer with the opposing counsel to disclose information. This involves discussing what data was found, what was not found, and learning if the opposing counsel may be open to compromise on any issues.
The meet and confer is an important milestone in the litigation process. Effective preparation arms you with crucial knowledge that can help you control costs, reduce risk, and better position yourself for a successful outcome. Leveraging ECA to its full potential improves your ability to:
- Isolate the right custodians to give you a good sense of what resources will be needed to conduct a complete document discovery and review. This will help you negotiate a targeted scope and define responsive data stores, address irretrievability issues, and clarify the event triggering date.
- Develop your search plan. Agreeing to search terms in the meet and confer without having run any searches first can put you in a vulnerable position.
- Identify potential collection issues. If you address collection challenges now, you can prevent “gotchas” later and avoid a charge of spoliation.
What Does a Typical ECA Produce?
The answer is a comprehensive story and timeline of the case. The facts found during this process help a lawyer develop an early understanding of how the case would develop and if it is worth pursuing. This includes the claims summary, the other side’s position, a timeline, interview summaries, important documents, experts, and the themes. ECA also produces useful information relating to the law, such as the jury charge and a summary of legal issues. The prospectives of the case are evaluated, which produces a venue analysis of the court, the jury, as well as past rulings and verdicts on similar issues. Prospectives also include an analysis of the opposition and their trial experience. Finally, ECA produces a plan, which consists of a strategy to get to the finish line of the case, a budget, and a settlement plan.
An ECA checklist published on The Settlement Perspectives blog offers an excellent, high-level overview of the key components of ECA:
- The Facts
- The claims summary
- The other side’s position
- A timeline
- Interview summaries
- The documents
- Your experts
- The themes
- The Law
- The jury charge
- A summary of legal issues
- The Forum, Your Opposition, and More
- A venue analysis
- The opposition
- Other circumstances
- The Plan
- Your strategy
- The budget
- A settlement plan
The Benefits of Early Case Assessment
When it comes to litigation, knowledge isn’t just power, it’s your responsibility. The earlier you can gather knowledge about your case, the better you’ll be positioned to make appropriate strategic decisions. A well-defined ECA process combined with the right technology is a winning strategy and one that should resonate on many levels.
The key is to have the right level of understanding at the right time. The goal is not to provide the same level of data needed during attorney review, for example, but to add clarity and insight to make better decisions at the early stages of a case. With technologies available that can quickly and easily provide you with that clarity and insight — based on Early Data Intelligence — time-and-cost barriers erode and increasingly more valuable and relevant data can be incorporated into the early assessment process.
“Rapidly identifying relevant documents, and ultimately finding the key documents, are vital to developing an effective case strategy and providing timely and accurate counsel to clients.” — Bobbi Basile, HBR Consulting
This is why the 60 day period is considered the sweet spot; it’s cost-effective to analyze ESI and any actionable insights within this time frame. For example, maybe the process is effective in culling the smoking gun that saves time and money, or maybe a party decides to settle after ECA, eliminating future litigation costs. Whatever the circumstances, a 60-day sweet-spot is the key to effective ECA.
Use Technology to Improve Efficiency of ECA Process
Without eDiscovery technology, legal teams would undoubtedly have a grueling time of sifting through documents and assessing the risks of prosecuting or defending a case. Fortunately, ECA is ultimately a part of the eDiscovery process, and technology offers tools to make this process more efficient. There are solutions that tout themselves as ECA technologies. But the reality is that ECA is not a technology — it’s a process — and many so-called ECA technologies are really filtering tools. Technology by itself cannot perform ECA, the right process, coupled with the right technology and the right people, can give you a significant advantage over the opposition. Having the right technology can provide an advantage if it allows you to:
- Begin investigating data early in the process with iterative workflows that enable you to sample, validate and refine data and strategies throughout the early assessment process.
- Undertake data-driven fact finding and trend analysis quickly and effectively with easy-to-use graphical and detailed dashboards and reports.
- Make the investigative process transparent to all groups involved in the discovery process, including clients and the courts.
Reveal is a powerful and comprehensive eDiscovery solution that can help you uncover valuable information about your case quickly during the ECA process by:
- Delivering insight graphically, enabling you to very quickly and easily uncover key trends.
- Providing reports that deliver enough substantive data to uncover key facts of the case without requiring lengthy review cycles.
- Supporting iterative workflows, enabling you to sample, validate, and refine data and strategies throughout the entire assessment process.