The start of most cases is a bit like a tsunami - an oncoming wave of inevitable documents, calls and emails. A wave that partners and lawyers have to traverse strategically in order to stay afloat. Now, the good news is that, unlike a tsunami, litigation cases leave more room for preparation than 15 minutes of calm before a wave. And whilst the onslaught of multi-party input and the need to sift through expansive data sets are an inherent part of the process, early-case assessment (ECA) is the meteorologist of litigation. It allows legal teams to answer three key questions:
- How long will it take to review all available data sources?
- What are the key facts, issues and available evidence surrounding the case?
- What are the potential approaches and outcomes of the case?
- What is the risk-benefit ratio for proceeding with the case?
In essence, early case assessment gives lawyers the foresight that allows them to mitigate financial losses and develop a secure case strategy early on. Although that sounds very good, performing ECA comes with questions too. What does “proper” early case assessment look like? Which steps are involved? And what’s the role of eDiscovery tools in this story?
This article will cover the answer to all of these questions, the essentials you need to know, and tips on how to master ECA.
Early case assessment
ECA focuses on assessing data sets within a case to evaluate the risks and benefits of proceeding with litigation. It involves elements such as:
- Identifying and categorising ‘hot documents’ - relevant or useful documents that could prove integral in the litigation outcome and require immediate review.
- Culling documents to reduce the size of the collection, perhaps through deduplication, applying date ranges or running search terms (simple deduplication processes can reduce the number of documents to review by up to 40%!).
- Assessing the scope of the issue by dividing the information into categories based on theme and importance.
- Determining overall review costs and the budget to be allocated for litigation.
Should you always perform early case assessment?
In theory, ECA is an undeniable necessity for litigation. However, just like many theories for things we intuitively know are better for us in the long term, it doesn’t mean that these theories are always embodied in practice.
With the majority of cases in the UK leading to settlement and the court system actively trying to promote mediation over litigation, some lawyers and law firms may perceive ECA as an unnecessary expense. Others may choose to avoid it entirely because they don’t have the team with the analytical experience required for effective ECA.
The question is, are these oppositions to ECA valid?
The answer is, yes.
eDiscovery software can be expensive, and inadequate ECA done by ill-equipped professionals or systems can result in poor decision-making regarding how to proceed with litigation. As was the case in Google’s losing patent battle with Oracle, where incriminating email documents that were overlooked for omission, built the backbone of Oracle’s winning case.
Whilst only a small percentage of cases may lead to litigation, effective ECA allows teams to determine whether litigation is truly worth pursuing. It also enables a deeper understanding of the merits of the case that could be used as leverage when negotiating a settlement.
Early case assessment isn’t a standalone solution for success, but it’s a foundational element in the following scenarios:
- Adhering to court deadlines for early evaluation - insufficient ECA processes can lead to failure to comply.
- Meet and confer sessions - the side that hasn’t performed ECA will not be as prepared to negotiate on the case keywords, which will greatly favour the opposing side.
- Clarity on budget - failure to carry out ECA opens up a black hole of expense management, with few parameters to gauge what expenses could be avoided.
Clearly, there’s great power in early case assessment; however, this only applies when it’s done right. But what does “right” look like? Below, we discuss three best practices.
Best practices for early case assessment
Practice 1: Be willing for it to take time
ECA requires deep analysis, from developing criteria used to cull data to eliminating your data pool to a select few ‘hot documents’. Like with any process done properly, it can not, and should not be rushed. Don’t reduce or rush your eDiscovery; consider how it can be better managed and crafted.
Practice 2: Invest in software that is smart, not excessive
When deciding what software is best for case assessment, don’t be wooed by the options that offer a myriad of features that you may never need or use. For example, predictive coding may be overkill for smaller cases. At the crux of good ECA, you need software that is quick to learn and easy to navigate and doesn’t overcharge for unnecessary functionality.
Practice 3: Quality of input determines quality of output
Data preservation is an overlooked and underestimated element of strong ECA. If your data pool has previously been compromised through modification or elimination, the outcome of your ECA will mirror these gaps. However, this can be mitigated by ensuring your clients know how to preserve their data effectively, and the common pitfalls of the preservation approaches that fail to do so.
What happens if you get it right?
With all of the above being said and done, if you implement these best practices and carry out effective ECA, this is what you can expect to gain:
A well-informed early-stage strategy
Assessing the key facts of your case early on will equip you with an objective view of case data. This can be built upon to create a guiding summary of the lawsuit. Using these two tools together will give you insight into the merits of the claim and how you will need to position your strategy to win and weigh up the pros and cons of various litigation approaches.
Greater accuracy when estimating the scope of eDiscovery
Money is a driving factor in deciding whether to litigate or settle. When you carry out effective ECA, it should give you a big-picture understanding of what each step could cost and the foreseeable obstacles and their respective monetary value. This bird's eye view of the scope allows you to choose your next steps in alignment with your department’s risk appetite.
A reduction in overall eDiscovery costs
ECA, when done right, can reduce the documents that require human eyes to review as well as the time spent in review (up to 10 times less, so research shows!). It can reduce the time spent arriving at a settlement. Or it can reduce redirections in strategy. When a strategy is focused, so are the associated expenses.
Adequate preparation for meet & confer sessions
These sessions should be about progress, not catch-up. When ECA has been done effectively, meet and confer sessions can focus on important tasks such as deciding on keywords to be searched and the scope to settle or resolve the case. Even more important, informed ECA can help litigation lawyers manage the outcome of the said meeting. After all, knowledge is power.
Merits and red flags
When a case calls for you to make the decision between settlement and litigation, it’s a process that must be approached strategically. You need to be able to assess the merits, foresee the red flags, and have a firm grasp on understanding how the balance of these two things can be used to your advantage.
Early case assessment, when done properly, is more than just the preliminary examination of relevant evidence. It underpins (and fortifies) the probability of case success.
Would you like to know more about the usage of eDiscovery tools in early case assessment? Then we’re the ones to talk to. Book a call with one of our experts below!
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