Early Case Assessment Best Practices

The 34th President of the United States, Dwight D. Eisenhower, once told a captivated audience that ”Plans are worthless, but planning is everything.”¹ There’s a lesson in this for legal professionals, even if plans themselves are far from worthless in the legal profession: The act of planning is often just as critical, if not even more important, than its outputs.

This guiding principle is at work in the practice of early case assessment (ECA), an approach to strategic planning that front-loads analysis and makes actionable insights available as soon as possible. 

Below, we’ll provide context for why ECA is important and how to conduct it; then, we’ll establish some consensus best practices to follow to get the most out of early case assessment.

Why Is Early Case Assessment Critical?

Early case assessment (ECA) is essential to building an effective legal strategy. Starting the process as early as possible allows legal teams to unlock the benefits of deep analysis sooner—giving them more time to plan, prepare, and respond with greater efficiency. By taking a formal approach to early assessment, teams can make more informed decisions and shape stronger legal outcomes from the start.

In practice, the two main benefits of ECA are:

• Better positioning from a thorough preliminary analysis of legal data
• Time and cost savings before, during, and after a matter goes to trial

Let’s take a closer look at each.

Strategic Case Positioning

Early case analysis puts talented legal strategists ahead of schedule, giving them more time to consider all elements of a legal matter from all possible angles. This obviates any rushed decision-making, which could lead to errors. It allows attorneys to game out anything that could happen in the course of a trial or extended litigation and prepare reactions to all of it.

It also allows legal teams to act proactively, preemptively seizing opportunities and making sure that certain scenarios play out exactly how they want them to. For example, attorneys may notice a key piece of evidence that could be challenged by the opposition and prepare defenses against motions to strike (via Rule 12(f) or a local equivalent). Or they could make it difficult for the opposition to raise such a challenge effectively within the allotted timeframe.²

Cost and Time Savings

ECA presents legal teams with sound strategic guidance leading to optimal legal outcomes without adding significantly to budgetary and timing concerns. Following early case assessment best practices (see below) will narrow down the options legal teams should explore before, during, and after a legal matter. This cuts down on processing time, decision fatigue, and other elements.

Another key cost-saving mechanism is selecting and leveraging the right technological and presentation strategies early, powering efficient allocation and preparation ahead of time.

Key Steps in an Effective ECA Process

Just as no two legal teams would take the same exact approach to a given case, strategies for ECA likewise differ based on the matter at hand, the professionals in question, and many other variables. That said, there are some standard processes that all ECA practitioners use.

Namely, effective ECA always includes three essential phases:

• Data collection and preservation
• Deep legal and risk analysis
• Predictive outcome generation

Let’s take a closer look at each—

Step 1: Data Collection and Preservation

Before any assessment or analysis can happen, legal teams need to gather all the information they can. This means retrieving and rendering files accessible in a uniform repository where any team members who need access can view, edit, and/or comment on them. Gather documents and other media that will be entered as evidence (invoices, records, letters, surveillance videos, etc.), as well as any background information pertinent to the case.

It’s also important to secure all legal documents retrieved and ensure that applicable data privacy and security regulations are being upheld. For example, data for matters involving healthcare concerns and sensitive patient records need to be stored and processed in compliance with the Health Insurance Portability and Accountability Act (HIPAA). Legal professionals may qualify as covered entities (or business associates) under HIPAA.³

Step 2: Legal and Risk Analysis

Once all the data is in hand, legal teams need to scrutinize it to extract any and all possible insights. This starts with identifying the ways that a given document or other file might become relevant in a case and how it relates to both the legal team’s own arguments and any the opposition might make. Any potential issues that could lead to evidence being stricken or otherwise discredited also need to be accounted for and planned for proactively.

This phase is where the underlying work that powers projections is performed. Legal professionals should leverage their expertise and knowledge of the law and applicable precedents, along with technological tools at their disposal, to identify as many themes and insights as possible.

Step 3: Predictive Case Outcomes

This is the ultimate payoff—the reason firms should be engaging in early case assessment. An effective analysis allows teams to project possible directions a case could take, including the outcomes that could be reached. This means gaming out what evidence will be admitted, what arguments will be made, how juries may react, and what the ultimate verdict will be.

Early case analysis allows law firms to supercharge their mock trials and focus groups by simulating cases sooner and more frequently. With more frequent and detailed simulations, granular variables can be studied more closely to provide the most accurate predictions.

Best Practices for Early Case Assessment

As noted above, no two firms’ approaches to early case assessment will be exactly the same, due to the variance in teams, cases, and more. However, just as there are certain phases all ECA processes need to cover, there are also consensus ECA best practices to follow.

To maximize the value of ECA, legal teams should implement best practices like:

• Starting as early as possible – The biggest strategic advantage of ECA is the head-start it gives legal professionals.

• Collecting and mobilizing data – Data is only as valuable as it is accessible. All files collected need to be prepared for analysis in a centralized, easily navigable platform.

• Not relying solely on precedent – Past cases provide a sense of how future cases could result, but new and surprising outcomes can also emerge. Be sure to calculate how likely a result is—how many simulations or which specific variables lead to it.

• Projecting outcomes realistically – The more realistic a prediction is, the more value it provides. If projections suggest that a negative outcome is likely, they should not be suppressed or ignored but explored further to inform potential changes in strategy.

Beyond these, there are broad strategies for technology and partner selection to consider.

Leveraging Advanced Legal Technology

Across all three phases detailed above, legal teams should be leveraging the most powerful technological tools at their disposal. Artificial intelligence (AI) and machine learning (ML) allow for much more data to be collected and processed at much faster speeds, unlocking more insights even before legal professionals take their first look at the documents. 

These AI and ML tools work by identifying patterns across the data and comparing them against other cases to determine likely use cases, reactions, and outcomes. Advanced cloud platforms also allow for easy, secure accessibility across all documents and compliance with applicable regulations.

A legal team’s ECA strategy can be a major differentiator when choosing legal technology partners. Seeking out service providers that leverage new and emerging technology, like AI and ML, can help firms start assessment earlier and maximize their potential value efficiently.

Collaborating with Litigation Support Experts

Legal teams can certainly conduct ECA internally. However, utilizing quality legal support services will streamline all phases of early case assessment and ensure that best practices are being followed. External experts leverage their wide bases of experience and exposure to cover any gaps in a given team’s expertise. And, even where no such gaps exist, external partners can augment analytical capacities to gather, analyze, and act upon data faster.

These benefits are especially potent when incorporating specialized services. For example, effective ECA can maximize jury consultants’ impact by giving analysts more information to work with sooner. And, in turn, jury consultants, witness preparation experts, and other specialists can make it easier for internal experts to get the most out of ECA analysis.

Optimize Early Case Assessments with U.S. Legal Support

Ultimately, all legal teams perform case assessments at some point in their preparation for a legal matter. Early case assessment starts the deeper analytical part of strategic planning sooner, supercharging case positioning and operational efficiency across the board.

U.S. Legal Support helps legal teams prepare for litigation with a wide array of logistical, technological, and strategic support. We’ll help your team with early case assessment to generate and act on powerful insights as soon as possible.

To learn more about our ECA and broader trial services, get in touch with us today!

Sources: 

1. The American Presidency Project. Remarks at the National Defense Executive Reserve Conference. https://www.presidency.ucsb.edu/documents/remarks-the-national-defense-executive-reserve-conference
2. Cornell Law School Legal Information Institute. Federal Rules of Civil Procedure | Rule 12. https://www.law.cornell.edu/rules/frcp/rule_12
   U.S. Department of Health and Human Services. Covered Entities and Business Associates.  https://www.hhs.gov/hipaa/for-professionals/covered-entities/index.html

Julie Feller

Julie Feller is the Vice President of Marketing at U.S. Legal Support where she leads innovative marketing initiatives. With a proven track record in the legal industry, Juie previously served at Abacus Data Systems (now Caret Legal) where she played a pivotal role in providing cutting-edge technology platforms and services to legal professionals nationwide.