The power of early case assessment in litigation

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.

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 four key questions:

1. how long will it take to review all available data sources?
2. what are the key facts, issues and available evidence surrounding the case?
3. what are the potential approaches and outcomes of the case?
4. what is the risk-benefit ratio for proceeding with the case?

Performing ECA, however, comes with questions. What does proper ECA look like? Which steps are involved? And what’s the role of eDiscovery?

Early case assessment

ECA focuses on assessing data sets within a case to evaluate the risks and benefits of proceeding with litigation. It involves:

1. identifying and categorising ‘hot documents’ – relevant or useful documents that could prove integral in the litigation outcome and require immediate review
2. 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%)
3. assessing the scope of the issue by dividing the information into categories based on theme and importance
4. determining overall review costs and the budget to be allocated for litigation

Best practices for early case assessment

Be patient

ECA requires deep analysis, from developing criteria used to cull data to eliminating your data pool to a select few 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.

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.

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 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.