Early case assessment (ECA) has been an important tool litigators have used for years to “quickly” evaluate the merits of a case. Despite all of the benefits ECA offers (such as reducing costs and providing for efficient resolution of certain legal issues), ECA is often a time-consuming process. Predictive legal tech can reduce this evaluation period if used in tandem with traditional evaluation methods. This article discusses five ways legal technologies can improve your early case assessment.
Early case assessment (ECA) is a systematic way for attorneys to quickly evaluate whether a case is worth litigating. For plaintiffs’ attorneys, ECA provides a tool to determine whether they should take on a case. For defense attorneys, ECA can help determine whether a case should be settled or litigated. When done correctly, ECA helps litigators organize, reduce litigation expenses, and resolve cases faster.
Doing ECA correctly takes time (for some, it’s at least a 60 day process), patience, and a lot of legwork. One of the first things attorneys need to do is summarize the facts of the case, setting aside the documents and witnesses that will support or hurt the case. Next, they need to summarize the other side’s position. For plaintiff’s counsel, this means anticipating the defendant’s defenses and possible counterclaims. For defense’s counsel, this means accounting for all of the claims and relief sought by the plaintiff and determining one’s defenses and whether there are any counterclaims. From there, counsel needs to consider the need for expert witnesses, any jurisdictional matters, and the capabilities of opposing counsel. Using the latest legal technology can help litigators with these considerations. Below are five ways this technology can facilitate efficient ECA.
1. Legal tech can help litigators evaluate a venue, judge, and, if a jury trial, the typical jury pool for a court.
Any ECA that contemplates litigation must take into account a jurisdiction’s tendency to be plaintiff- or defense-oriented. In the past, this may have required litigators to spend hours tracking, researching, or asking local counsel about the litigation outcomes for each potential court in which a case could be filed. Today, however, technology can streamline the process. Legal tech, such as Ravel Law, uses data analytics to determine how a judge is likely to rule on a case, to compare forums, and to assess outcomes. This information can help reveal how your case is likely to hold up in a given jurisdiction.
2. Legal tech can help attorneys identify expert witnesses to use or to be used by opposing counsel.
Some cases hinge on the use of expert witnesses, so ECA must consider the expert witnesses likely to be used in litigation. Companies like Courtroom Insight have compiled mountains of data so that litigators can identify the best experts for their case. This legal technology allows litigators to analyze expert C.V.s and testimonial histories and to challenge activity by jurisdiction, party, and judge. This comprehensive analysis cuts down on the traditional vetting process exercised by litigators when choosing expert witnesses and gives insight into what experts opposing counsel might choose so that counsel can develop a robust litigation strategy. Litigators using Fastcase already have access to Courtroom Insight via it’s AI Sandbox tool.
3. Legal tech can help attorneys determine the strength of opposing counsel.
According to Sun Tzu, “if you know yourself but not the enemy, for every victory gained you will also suffer a defeat.” While opposing counsel is not necessarily an enemy, it is important to know about their strengths and weaknesses, which is why ECA generally includes a discussion about opposing counsel and what can be found out about their abilities, past trials, reputations, work ethic, tactics, etc. Products such as Lex Machina and Premonition use data analytics to determine opposing counsel’s likelihood of winning or losing a case. The software can be used to identify the opponent, whom opposing counsel has represented in the past, an opponent’s average case length, hourly rate, and win rate. These are all important in calculating the potential value of a case.
4. Legal tech can help attorneys predict the likely length of a case.
Litigators can take advantage of data analytics to predict the length of their case using legal technology like Bloomberg Law’s Litigation Analytics tool. Litigators can use the tool to instantly compare how long judges typically take to resolve cases and how long cases take to resolve in specific jurisdictions and across all federal district courts. Litigators can then pair this information with the data about opposing counsel to better predict the cost of a case.
5. Legal tech can help attorneys identify important documents and estimate e-discovery costs.
As a part of ECA, attorneys should identify the top ten documents to be used in their case. In less complex cases, this is not a difficult task. But if the case involves complex issues and large databases, finding the best ten responsive documents can become a search worth hundreds of hours and thousands of dollars. Discovery tools such as DISCO and Everlaw can be used to sample databases to predict the cost of later e-discovery required for a successful case. E-discovery calculators, such as the one offered by logikcull, can also help predict the costs of a data-heavy case during ECA.
Do you use ECA? Do you use any of the above technologies to assess your case or do you use more traditional methods? Let us know!
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Attorneypreneur, writer, technologist. Nerdy for legaltech, politics, crypto, cybersecurity, innovation. Presently in-house at Williams & Brown. Former adviser at Baylor Law, and founder of two technology and legal consulting companies. @JoshuaWeaverEsq