Although many companies have developed written protocols for evaluating the risk associated with a new suit, they infrequently use case assessment as a systematic process to manage litigation. Typically, companies will perform a preliminary case analysis shortly after the suit is filed but will rarely consult the assessment later in the case. Changing this can help in-house counsel better manage litigation and keep costs down.
A well-designed case assessment identifies key factual and legal aspects of a case; facilitates the development of an effective litigation plan; provides a framework for making a realistic appraisal of likely outcomes, including the prospects for alternative dispute resolution; and contributes to effective budgeting decisions. Additionally, the case assessment can harmonize the expectations of in-house counsel and their internal clients, and it is a vital process for coordinating litigation strategy with outside counsel.
In-house lawyers should divide the case assessment into three stages: preliminary analysis, ongoing review, and closure.
• Preliminary analysis. An effective case assessment begins with an objective analysis of a case's key facts, known and unknown. There is no substitute for a thorough investigation conducted under the direction of legal counsel.
In addition, litigation counsel must work closely with business managers to identify key people with relevant knowledge and to develop a plan for collecting and preserving the company's documents and electronically stored information.
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By: Matthew W. Caligur