Early Case Assessment (ECA) can be a challenge for legal teams and law firms alike. Although it may be a tedious task, it’s absolutely crucial to get it right, especially during those valuable first 60 days. Teams tend to find that a strict workflow that takes them through the ECA process increases efficiency and accuracy, and gets more value out of their time. This is why we created this Early Case Assessment checklist: the ultimate guide to everything you need to do during ECA.
Wait. What is ECA??
While some define ECA as an eDiscovery process and others prefer a more traditional legal approach, we recommend viewing ECA through a healthy lens of both old school and new school legal practices. While it’s important not to lose sight of the core goals of ECA, innovations in legal technology can drastically improve the process.
For those who may be unfamiliar, ECA is a process that evaluates the risk involved in prosecuting or defending a legal case. It involves conducting custodian interviews to gather ESI (electronically stored information) and data analysis. It also involves planning and strategizing to achieve the best outcome for your company or client, while preparing for what could go wrong.
Before you use an Early Case Assessment checklist, it’s important to understand what your goals should be and what questions you want to be answered. The key function of an ECA is risk management. Is it the best option for your company to go to trial, or should you settle? If your company is the plaintiff, should you keep pursuing the matter or walk away? This is the time to develop a potential case strategy, a time frame, and determine potential litigation costs and eDiscovery costs. If eDiscovery costs turn out to be too hefty to pursue, ECA allows you to see that coming with a benefit analysis, giving your organization the opportunity to make a fully-informed decision.
The first 60 days are also the ideal time to learn the key issues and themes of your case. It’s been stated that, “In 60 days . . . you will know 80 percent of what you will ever know about a case.” Have you ever realized the relevance of a document halfway through a case and wished you had found that information earlier? Thoroughly conducting a repeatable ECA process is the best way to avoid missing relevant information.
Early Case Assessment Checklist
Now that we’ve established the basics of ECA, let’s get down to the nitty-gritty. Keep in mind that this checklist isn’t merely a list of tasks, it is designed to take you through the ECA process from beginning to end. This checklist may serve as a guide for those who are new to the process, or veterans who wish to update or refine their practice.
Gather Your Tools and Team
The right tools and lineup can make all the difference in ECA.
- In an industry that uses constantly evolving tools to drive efficiency, it’s important to make use of the right ones. The eDiscovery software you choose impacts your ECA process, timeline, and budget. Refer to our other ECA post for more on the use of technology for efficiency in ECA. Tools that come with a good eDiscovery platform like foreign language translation, image labeling, and AV transcription are instrumental in assessing a case.
- In addition to tools, you also need the right people on your team. If you need to involve the IT department, (hint: you probably will) make sure to get them involved early. They will be your partners in the next step of the process. Of course, identify the counsel team that will be working with you on the matter. To keep everyone in the loop, it’s a good idea to set up email notifications or reminders for all relevant upcoming dates regarding the case.
- Finally, be sure to document your steps throughout all phases of ECA to create a defensible process.
The Scope of the Matter
- Working with IT or the individuals responsible for Data Governance, create a data map to identify all potential sources of Electronically Stored Information (ESI). This is especially important to uncover data stored in different countries or jurisdictions that have different data privacy laws. This can also uncover pools of potentially problematic data like audio/video files, data in different languages, proprietary formats, etc. that could have an impact on the eDiscovery software you choose.
- Custodian Interviews are a good way to validate and expand on your data map and get a sense of scope for the matter. What do custodian interviews look like? It depends on what approach you take. Many legal teams use various Automated Interview Systems like email questionnaires or a more thorough interview application.
- While the amount of data may be overwhelming at this time, identifying just how much there is to go through is something you want to do during ECA. The size and scope of data will inform predictions for eDiscovery costs.
- Note any missing data that you may need access to and determine how to obtain it. Place a legal hold on potentially relevant documents.
The Deep Dive
Data analytics may be one of the most technical parts of the ECA process, but it makes the rest of the steps possible. Without evaluating and making sense of data sets, you wouldn’t be able to produce the information that assists your company in making the big decisions.
- While you’re not necessarily doing as thorough of a document review as you will be during the case, it’s up to you to devise a strategy to get to the data that matters. You could choose to process and analyze a few of the priority custodians to come up with a culling or filtering strategy. An exclusion strategy might consist of using AI, an email spam filter, or a list of irrelevant domains to filter or exclude data from the investigation.
The inclusive strategy could consist of sophisticated tools like artificial intelligence (AI), or more binary tools like keyword search to identify potentially relevant material.
- Data sampling is a practice that can be used to validate your culling strategy for a defensible process. You may remember the data sampling technique from your high school statistics class, where a representative sample set of data determines information about the larger data set, or population. In eDiscovery, that means analyzing the relevancy of small data sets to determine how many relevant documents you might have.
- You should start getting answers to the questions that matter in the case’s early stages. Like, is there a smoking gun?
- Start identifying the key documents of the case. It’s best to be aware of relevant data as early as possible so nothing catches you by surprise when it’s too late.
Collect the Facts
Now that data analytics are done, it’s time to assemble the useful information you found in a digestible format. This is less about familiarizing yourself with the information (because you’ve likely had a thorough introduction already) and more about laying all the facts out on the table clearly in order to see the big picture and form a plan. Think of this stage as your Sherlock Holmes moment, where all the disorganized pieces of the puzzle start to fit together.
- Case description – Always start with the basics. Define what kind of case it is and who the key players involved are.
- No matter what side you’re on, it’s necessary to have a clear claims summary. An explanation of the plaintiff’s claims is the first step to understanding the case.
- A summary of the opposing counsel’s position is next on the list. Any documents you have directly from the other side, like a response, complaint, or demand letter will be useful.
- After conducting custodian interviews, they must be whittled down to the most relevant information. Summarize the key points of all interviews and include witness evaluations so this information can be easily accessed.
- Any expert witnesses that may be needed to provide testimony should be planned at this time. Include what parts of the case may need an expert’s opinion and list potential candidates and their credentials.
- Create a time frame of events with dates and relevant documents to back up your facts.
- Gathering relevant documents in this stage is paramount. Look at what you took note of during data collection and include the documents that were identified as the most relevant. The goal is to present the must-see documents that contain the key facts in an organized fashion.
- Developing trial themes so early in a case can be difficult, but it is important to have an idea of what each side’s themes will likely be. A good theme is not something to underestimate, so painting the big picture in the early stages of the case can help your company or firm narrow its focus.
- Risk management – You’ll do a full risk management analysis later, but now is the time to start evaluating. One strategy is to draw on the past to guide you. Refer back to similar cases: what were the outcomes? How can this inform your current case strategy?
- Jury Charge. Even though it might seem like it’s a bit early in the litigation process to worry about drafting a jury charge, it’s important to start defining the legal aspects of the case early. Especially since the jury charge is often quite complex, developing how you’d prefer the jury to be instructed while all the case details are still fresh in your mind and at your fingertips can be advantageous.
- What are the legal issues that will be applicable to your case? Look into statutes of limitations, jurisdictional issues, the likelihood of success of legal motions, etc. Leave no stone unturned and summarize all relevant legal issues.
Evaluate the Landscape
A lot hinges on scoping out every aspect of the case, should it go to trial. Factors like venue can even help predict the likely outcome of a case. Make a point to account for the following case details.
- Write a venue analysis that evaluates the jury pool, past rulings in cases similar to yours, and anything else pertaining to the court that may impact the case.
- An evaluation of the opposing counsel‘s history is always a good idea. You want to know who you’ll be going up against and what to expect from them. Have they worked on cases similar to this one? What was the outcome? How many years of experience do they have? These may all be factors in whether your organization decides to go to trial or settle.
Finalize the Game Plan
- A cost-effective budget is one of the major documents produced during ECA. The budget can determine if your company decides to go to trial or settle, so it needs to be realistic. Don’t forget to estimate eDiscovery costs and evaluate if there are any ways to minimalize costs.
- Being prepared for all possible outcomes creates a bulletproof ECA. A good process leaves no stone unturned, so having a settlement plan in your back pocket is paramount. Your company or client needs to know how much they could potentially spend.
- Doing at risk management analysis at this stage is essential, as it’s one of the chief goals of ECA. Evaluating your findings by analyzing documents, potential costs, possible outcomes, and similar past cases are all part of minimizing risk. Determine what the absolute worst outcome possible is and what the consequences would be.
- It’s final decision time. Now that you have all the vital information on the case, it’s time to strategize for how to proceed. It’s best for litigation strategy development to be a collaborative task, so even though it may take longer than other parts of the process, it’s one of the most important steps of ECA.
If your organization is interested in migrating your in-house or firm’s eDiscovery solution, contact Reveal to learn more. We’ll be happy to show you how we deliver more than traditional eDiscovery companies, with our AI-powered, end-to-end document review platform.