In previous posts (What is Discovery?, Evolution of eDiscovery Analytics, Tape Indexing Breathes Life Into Tape Storage) I’ve talked about early case assessment or “ECA.” ECA happens when a company looks at the information that might be used as evidence in a legal dispute “early,” which is to say, within days of when it appears that there may be a dispute. This tactic may sound like common sense, but it actually runs counter to the tendency of both lawyers and business people to put things off. Traditionally, many lawyers have focused on getting their court papers together first, then doing a detailed investigation of the facts of a case only when they are required to do so by the court. This delay in getting to the bulk of the documents that might be involved hasn’t exactly met with resistance from business people who generally prefer doing the jobs they were hired to do rather than getting sidetracked by a lawsuit.
ECA has one huge advantage: getting key facts straight early may enable legal counsel to either 1, negotiate a settlement agreement–or 2, ask the court to dismiss a case because no evidence exists to support the lawsuit.
From a business standpoint earlier is usually better when it comes to ending lawsuits because it means lower costs and fewer distractions for the business people involved.
We’re talking tens of thousands of dollars for even the least expensive lawsuits, up to many millions of dollars for bigger ones. And besides attorneys fees (typically hundreds of dollars an hour per attorney, sometimes with multiple attorneys billing for months at a time) and a wide variety of expenses, lawsuits suck time away from business people who would otherwise be productively generating value for their companies. And they are distracting, too – people get emotionally involved in conflicts, even more than they get sucked into sports or reality TV shows, and start thinking about that instead of how to build a better widget or motivate their teams.
When I was a young associate working for a big San Francisco firm I had the privilege of receiving an informational interview from someone who at the time was one of the senior in-house counsel at a giant multi-national engineering firm. He told me that his ideal outside counsel was someone who could settle a case just weeks after it reached his desk, because cutting to the chase, settling a dispute for what it is worth in business terms, and eliminating the attorneys fees and distraction were what mattered to him.
Early case assessment ideally is like getting to checkmate at the very beginning of the game. Ideally you find out: we win or we lose. Then you settle. Attorneys do that too. A little known fact among non-attorneys (contrary to the TV shows) is that very few lawsuits get as far as a trial. Most settle before trial. You show the other side why you are going to win, or you say “hey, we’re not going to admit anything, but here’s a big check so that we can both move on.” The real question is, how soon can we settle? And the answer is usually “when both sides think they have all of the facts.”
So ECA saves money to the extent that it can authoritatively establish facts – including not only “smoking guns” but the presence or absence of evidence and the quality of that evidence – which enables early, appropriate settlements. When ECA works properly the side producing documents can say with authority: these are the facts; let’s settle on this basis.
So what can a company do to improve its ability to do ECA? Use technoloy, of course. The good news is that these days most of what must be reviewed is electronically stored information such as emails, spreadsheets, word documents, and databases, which lends itself to automated review. And although there is a substantial upfront cost to automate the process, once in place automated document handling is faster and less expensive and it can be more accurate than manual review.
A company that is serious about ECA will put in place two key technology components.
The first piece of technology is search, or what is sometimes called “document discovery” technology, which systematically checks or “crawls” the company’s computer systems for stored information, and categorizes it, so that searches can be run to find all relevant documents.
This identification and categorization process is also useful to meet a company’s duty to preserve information that might be relevant to the lawsuit once the possibility of a lawsuit is known. A court may rule against a company in a lawsuit solely because the company failed to quickly find and protect key information before it was altered or deleted in the ordinary course of buisness.
The second piece of technology is conceptual search or clustering which enables vast amounts of documents to be quickly analyzed with a minimum of costly human effort. It’s not “early” case assessment if hundreds or thousands of attorney hours must be put in before meaningful conclusions can be drawn about the strength of a lawsuit and the ability to settle or file for dismissal.
Because ECM can save a great deal of time, money, and distraction, organizations expecting significant e-discovery and/or compliance obligations should prioritize search and clustering technologies within their IT roadmaps.
bruce2b 