Chapter § 1.11 Early-Stage Case Management

• Jurisdiction: United States
• Publication year: 2020

§ 1.11 Early-Stage Case Management

At the outset of litigation, in-house counsel should work with their selected outside counsel to evaluate the costs and benefits of litigating the case. A recent government study showed that the vast majority of cases never reach trial—97% of civil cases in state courts in the nation’s 75 largest counties were settled or were disposed of before trial.⁹⁵ The better the parties are able to assess the strengths and weaknesses of their case, the higher the chances of an early and satisfactory settlement.⁹⁶ An early and rigorous evaluation can result in a reduction of unnecessary litigation expenses, better decision making, and an improved ability to identify the causes of the litigation and prevent future claims. An early case evaluation should include at a minimum: (i) a proposed budget estimating costs in each stage of the litigation; (ii) a preliminary evaluation of the strengths and weaknesses of the plaintiff’s claims; and (iii) an evaluation of the settlement possibilities for the case. This early evaluation will guide in-house counsel in deciding how to proceed.

[1] Proposed Budget

A litigation budget can take many forms but (at least for engagements based on a straight hourly fee) should include the following information: (i) identify the scope of work to be performed; (ii) identify the core team that will conduct the litigation and estimate the total number of lawyers required; (iii) estimate lawyer costs (estimated number of hours required multiplied by each lawyer’s billing rate) at each stage of the litigation (initial fact investigation and case evaluation, motion to dismiss, discovery, experts, dispositive motions, trial, post-trial motions, appeal); and (iv) estimate expenses accrued at each stage of the litigation. These expenses may include court reporters, transcripts, travel costs, consultant and expert fees as well as data retrieval, searching and hosting costs.

[2] Preliminary Evaluation

In-house counsel should work closely with outside lawyers to develop a preliminary assessment of the strengths and weaknesses of the plaintiff’s case (i.e., an early case assessment). This should be a concise statement designed to give management a basis on which to make informed decisions about how to conduct the case. This evaluation will take different forms depending on the nature of the plaintiff’s claims, the evidence and facts immediately known, the venue and a host of other factors. However, most assessments...