CPR's Early Case Assessment Guidelines set forth a process designed to help businesses decide early on how to manage disputes. These disputes are generally with other businesses or individuals, but could also include internal disputes, and may or may not involve litigation. The CPR Early Case Assessment model calls for a team, typically led by in-house counsel, or a non-lawyer employee or outside counsel appropriate for the dispute, which works together in a specified time frame to gather the key facts of the dispute, identify the key business concerns, assess the various risks and costs the dispute poses for the company, and make an informed choice or recommendation on how to handle the dispute. While one of the possible recommendations could be to settle or resolve the dispute, CPR wishes to emphasize that these Guidelines are not about Early Case Resolution (ECR), which is but one possible outcome of Early Case Assessment. Instead, these Guidelines focus on evaluating the dispute so that an appropriate handling strategy can be formulated, whether that be settlement, full bore litigation, or something in between (ADR), with an eye toward reducing or eliminating disputes as soon and as inexpensively as practicable.
Early Case Assessment is a simple conflict management process designed to facilitate informed decision-making at the early stages of a dispute. Early Case Assessment is not the same as Early Case Resolution ("ECR"), but may include ECR components. ECA can be an important and effective tool regardless of whether the matter proceeds to mediation, arbitration or litigation, and regardless of whether there is an early resolution. Typically, it is a collaborative process between in-house counsel, outside counsel and the business client. At the outset of the dispute, this team assembles information pertinent to the dispute (e.g., key facts, business concerns, legal analysis, etc.) in order to make as informed and disciplined a decision as possible at that time concerning the handling of the dispute, whether by negotiation, mediation, dispositive motion, trial or otherwise, despite imperfect data and without engaging in formal discovery.
Many companies employ a computerized matter management system for purposes of tracking litigation, claims, government investigations and related legal matters. Such systems are useful in financial and SEC reporting, corporate compliance requirements, internal and external auditing functions (e.g. setting contingency reserves), dealing with insurers, etc. ECA is not intended to take the place of a matter management system; however, one may usefully become a component of the other. For example, information compiled for a particular case to satisfy the requirements of the matter management system may be referenced or substituted for the case identification and background requirements of ECA.
In today’s highly litigious business climate there are numerous business and legal trends supporting the use of early case assessment. These trends include an increasing volume of claims and litigation, the increasing complexity and protraction of claims and the resulting higher legal fees and settlements. In this climate, many legal departments have worked to develop new definitions of “value” and “win” in the legal environment by treating disputes as a business process, and protracted litigation as a defect to be remedied. One effective tool for controlling disputes and reducing or eliminating litigation is the ECA process described above.
There are numerous potential benefits of implementing an early case assessment program. They include:
- Enhanced, early case analysis
- Enhanced, early risk identification and analysis
- Enhanced, early evaluation of potential end-game solutions, including, potentially, alternative dispute resolution
- Enhanced ability to gauge business needs and solutions, and improved client relations
- A reduction in legal costs and expenses
- A reduction in settlement and resolution costs
- A reduction in the “claim-through-resolution” cycle time
CPR assembled a Commission of primarily corporate members to collaborate and produce Early Case Assessment Guidelines that can be used across a broad spectrum of disputes. It is intended to be a flexible tool that may be adjusted by in-house counsel to meet the particular needs of their business. It can be applied in whole or part depending on dispute circumstances to conduct early, rapid and consistent analysis of a dispute to find the most effective resolution path geared toward limiting corporate expenditures, serving business concerns and utilizing the most appropriate conflict resolution process. The ECA Guidelines can be adjusted and updated as a dispute unfolds.
The growing adoption of early case assessment programs, and other litigation management initiatives, arises from the mandate of in-house legal departments to better and more effectively manage litigation, in terms of outcome and cost, and to do so with a better calculation of the business interests and objectives implicated by that litigation.
In addition, in-house legal departments have at their disposal more and better tools for gathering necessary data to assess litigation risks and solutions, measure progress, communicate lessons learned and track successful strategies and solutions.
Early identification of risks, business prerogatives, likely outcomes and potential alternative resolutions should be a part of every early case assessment program. Successful early case assessment, and, possibly, resolution, is contingent upon conducting a more informed and expedited decision-making exercise at the outset of a dispute. It should be a collaborative process between in-house counsel, outside counsel and the client.
At the other end of the spectrum, once a dispute is resolved, the collaborative team may well benefit by engaging in a “lessons learned” exercise (also known as an after action review process), not only to capture the valuable insights gained from any dispute for application to another, but also to identify appropriate business practice corrections, which may include contract or policy or procedure revisions, enhanced training programs or revised business processes (such as the implementation of an early warning system). This exercise might well include the review of the initial early case assessment itself, as well as the ultimate disposition of the dispute, whether by litigation, settlement or otherwise.
The CPR ECA Guidelines provide a structured approach for conducting early evaluation of a dispute. They can be tailored to meet a particular company’s objectives, management style or litigation experience. Within a company, they can be adopted, as tailored, for certain types of litigation, but not others, as the company chooses, or for disputes involving a predetermined dollar value or exposure. >> Download the Full ECA Document
The Guidelines consist of the ECA Executive Summary (or "Short Form") and the ECA Detailed Analysis (or "Long Form"). The Short Form is intended for sophisticated users who are familiar with the elements of the Long Form and who may have routinely employed ECA for many years. The Long Form is intended for users who are less familiar with the concept of ECA and who seek a comprehensive analytical model. Corporate users are encouraged to tailor the Long Form to their particular needs and requirements. Over time and with experience dealing with the Long Form, users may gradually migrate to the Short Form or develop their own version of such a form.
CPR’s ECA Detailed Analysis Form lists illustrative factors for consideration by counsel in developing the ECA Executive Summary, or other report, whether written or oral, for discussion with the business or “client.” The ECA Detailed Analysis Form is designed to be flexible; applying any particular component of the form, or adjusting the form, may, in the company’s determination, depend on the specific matter or dispute for which it is being utilized.
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