By Daniel D. Droog (former Shipley Snell partner)
According to the CPR’s Early Case Assessment Resource Checklist:
As today’s law firm and corporations work to manage litigation costs and improve outcomes, early case assessment (ECA) is taking on an increasingly critical role.
Early case assessment (ECA) is a much talked about topic. Although the importance of assessing a case early and often has been known for some time, one of the more recent developments in the practice of law is the tools which lawyers and clients can deploy to conduct insightful, accurate, and ultimately useful ECAs. A few of the more interesting tools/techniques I have utilized are CaseMap, Decision Tree, and Game Theory.
CaseMap case analysis software by LexisNexis is probably my favorite piece of litigation technology. With CaseMap, your litigation team can compile key players, events, and documents from the very beginning of a potential dispute, build chronologies (that are linked to the actual evidence), and update research and task lists throughout the life of the matter. Gone are the days of repetitive work, wasted discovery, and mindless word processing. Instead we use CaseMap on nearly every matter at our firm and give the client access to the “map” so they can participate in “building” the case. At any moment we can provide an accurate snapshot of the matter to company executives.
Several years ago I purchased the Decision Tree software by TreeAge Pro and the companion guide by Marc Victor of Litigation Risk Analysis. It may be my fascination with science and flowcharts, but few things are more insightful than collecting the key decision makers in one room, building a Decision Tree, and then (wait for it . . .) rolling it up to value the likely outcomes. Decision Trees have obvious limitations (see below) but in terms of identifying the key areas in a dispute that will have a big impact on the outcome and giving a range of possibilities that goes beyond simply a “gut feeling,” we use Decision Trees whenever possible.
At the 2010 CPR Annual Meeting, Bruce Bueno de Mesquite presented on the use of Game Theory in dispute resolution, specifically in mediation. Unlike Decision Trees, Game Theory is more focused on what all “players” that can influence a potential outcome are concerned about or not concerned about, articulating or not articulating, motivated by or not motivated by, focused on or not focused on. Although Game Theory advocates would agree that not everything can be predicted, they are quick to point out that what can be predicted can also be engineered. Thus, Game Theory provides promise in both predicting and ultimately engineering resolution of disputes.< Previous | Next >