EARLY CASE EVALUATION

Early Case Evaluation: Also known as Early Neutral Evaluation, Early Case Evaluation is a process in which a lawyer with expertise in the subject matter of the dispute acts as a Neutral Evaluator of the case. It is a flexible, informal and confidential process in which each party is given an opportunity to present its case to the Neutral Evaluator, who provides a non-binding opinion on the evidence and arguments presented by each party and, if requested, may provide suggestions for resolving the dispute. Early Case Evaluation can take place prior to trial, arbitration or mediation.

The Goals of Early Case Evaluation:

• Provides an opportunity to streamline formal discovery by assisting in an informal exchange of key information;
• Can serve as a cost-effective substitute for formal discovery and pre-trial motions;
• Helps the parties identify and clarify the central factual and legal issues in the dispute;
• Provides a “reality check” for parties and their attorneys;
• Provides each party with an assessment of the merits by a neutral expert;
• Enhances direct communication between the parties about their claims;
• Can facilitate settlement discussions when requested by the parties.

The Process of Early Case Evaluation: The Neutral Evaluator holds an informal meeting of the parties and their attorneys at which the following occurs:

• Each party presents the evidence and arguments supporting its case. The case may be presented by counsel, the parties and/or witnesses. The process is informal and generally presentations are made without regard to the rules of evidence and without direct or cross-examination of witnesses.
• The Neutral Evaluator identifies areas of agreement, clarifies and focuses the factual and legal issues, and encourages the parties to enter into procedural and substantive stipulations to help stream-line the pre-trial process;
• The process is flexible and, after the parties’ presentations, the Neutral Evaluator may assist the parties to engage in settlement discussions, or to conduct additional focused discovery. The Neutral Evaluator can also help the parties realistically assess litigation costs as a part of the “reality check.”
• The Neutral Evaluator prepares a written, non-binding evaluation that includes (1) an assessment of the relative strengths and weaknesses of each party's case, (2) where feasible, an estimate of the likelihood of liability and the dollar range of damages and (3) the reasoning that supports the Neutral’s assessments. The Neutral Evaluator may also identify areas of common ground and, if requested, provide a proposed resolution for the parties’ consideration.
• The parties and the Neutral Evaluator will consider whether some form of follow up to the session would contribute to case development or settlement.

Preservation of Rights:  The parties' formal discovery, disclosure and motion practice rights are fully preserved. The confidential evaluation is non-binding and is not shared with the mediator, arbitrator or trial judge. The parties may agree to a binding settlement. If no settlement is reached, the case resumes its original track.

Note: The descriptions and discussion above represent the approach of Construction Dispute Solutions, PLLC and the opinions of its principal.