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nylj.com |
Litigation | Tuesday, sepTember 8, 2015 | S3

side lawyers feel they did the best they could (dta), provides a win-win mechanism for the

to keep their adversaries reigned in, despite parties in disputes for which settlement is an
their client’s dissatisfaction with the costs of option to be considered or is a likely outcome.
the process, while their partners congratulate the reality is that the longer a dispute goes
them for the revenue generated by the case.
on, the more hardened the parties’ positions
become, and the more expensive the ultimate
old Habits Are Hard to Break
resolution is to everyone in terms of time,
money and damage to relationships. emo-
how does such an ineffective and unsatis- tions, including pride, anger and greed, turn
factory system continue to prevail? why do otherwise reasonable people into intractable

such obviously intelligent, creative people opponents.
continue to follow this model case after case, In its simplest definition, eCa is a process
year after year? the answer is simple. old designed to obtain sufficient information in
habits are hard to break.
a short period of time so that a reasonable
despite the availability of non-traditional assessment of the costs and risks of the dis-
methods of dispute resolution such as arbi- pute can be made. the key to defining the
tration and mediation, the vast majority of elements of eCa is to approach the “case” as
disputes continue to follow the pleading-dis- a business transaction rather than an adver-
covery-trial preparation-settlement model. sarial dispute. the objective is to determine

and despite dissatisfaction with the billable whether the company should enter into a
hour model by those paying the bills, and particular business transaction (in this case,
examples of a plethora of alternative billing settlement), and whether it is in the com-
methods, the standard model prevails. this pany’s interest to act quickly in order to maxi-
arrangement often rewards quantity over mize the benefit of this particular transaction.
quality, inefficiency over efficiency, standard the implementation of an eCa program
practice over creativity and can put outside as an alternative method of resolving claims
counsel squarely in conflict with their clients.
and disputes is available and can be adapted

the unpredictability of outcomes contin- for use in any company, whether the docket
ues to fuel the model with all parties buying involves one case or hundreds. likewise, this
into the notion that the process itself deter- type of analysis is useful for any litigant in
mines what the settlement amount will be— any dispute. It recognizes the reality of the
the more aggressive the defense, the smaller cost and risk of litigation and presents a long
the settlement, and the more aggressive the overdue method to achieve rapid, reasonable
prosecution of the action, the larger the settle- resolution of disputes.
marcumllp.com/nylj
ment. those outcomes are simply not sup- unless a case is one that the party would
ported by the facts. an analysis of the claims not settle under any circumstances and must

and defenses in the early stages of the process be tried to verdict and/or ultimate decision
can usually predict what the settlement value after appeal, the matter should be immedi-
is—and will be—regardless of when the par- ately assessed for potential early resolution.
ties get to that discussion.
the adversary should be approached, most
Breaking the litigation model requires effectively in a face-to-face meeting in a neu-
everyone to move out of his or her comfort tral setting, to set the tone of civility and to
zone. Corporate counsel will have to be willing discuss the potential for an agreement to
to fairly assess and reward “value.” what is it stay the proceedings. this will give the par-
worth to the company to settle a case in six ties time to assess the claims and defenses

weeks versus three or four years? what does and value the case. this is a crucial juncture
it take for an outside lawyer to make that hap- as it is imperative that the parties’ counsel
pen? how can that performance be “reward- establish a working relationship at the outset. Too many questions,
ed” within the confines of the corporate struc- the objective is to enter into a simple agree-
ture? will courts accommodate the process?
ment for the exchange of information on a set not enough time.
for the outside lawyer whose entire busi- timetable and to stay the proceedings during
ness is built on the hourly billing rate model that time. the parties need to agree on what
with its easily projected budgets and profits- information is absolutely essential in support
Not enough hours in the day?
per-partner estimates, is value-based billing of, and in defense of, the claims asserted.
just too risky to embrace, notwithstanding all information, discussions, documents Let us help.
the obvious client dissatisfactions with the and offers, if any, must be expressly agreed
current model? Can plaintiff’s counsel be per- to remain confidential, although any evidence Research On Call has a team of
suaded to turn over information and discuss exchanged, which is otherwise admissible or
resolution of a dispute in a business, rather discoverable, is not rendered inadmissible or research professionals on call, ready
than an adversarial, context? how can they non-discoverable merely because it is present- to help you get the precise information
trust their enemies? why should they believe ed in this process. the parties must agree to
they are achieving the best results if they prompt negotiations following the exchange you need to get an edge over the

don’t slug it out in the standard litigation pro- of information, with or without a mediator.
competition.
cess? even if all parties and the court will once this agreement is in place, the task of
agree to a process that stops or delays the assessing the value of the case is the next step. Same day rush service is available.
normal litigation model, how can a case be management will inevitably want to know
analyzed in a way that all parties can agree your opinion on the company’s exposure.
is fair and where the predictions of how the an answer such as “hard to know,” or “litiga-
evidence and arguments will play out can be tion is unpredictable” is not going to sit well
addressed so as to avoid the need to actually with people charged with running a business.
go through the process?
To get started, visit VerdictSearch.com or contact the
Going Beyond the ‘Gut’ Guess
win-win with Early case Assessment
VerdictSearch Research Team at 1-800-445-6823
many companies use decision tree analy-
early Case assessment (eCa), coupled with ses routinely to make important business
what is known as a decision tree analysis
decisions. engineers use them » Page S10