Picture this. You are busy preparing for your weekly conference call with one of your vendors when you hear a knock on your office door that interrupts your train of thought. The door opens, a server hands you a subpoena and -- to your bewilderment -- your business has just been sued. After collecting your thoughts, take control by managing the costs of going to court and the impact it may have on your business by directing your lawyer to conduct an Early Case Assessment (“ECA”). This post will (a) define and elucidate the mechanics of an ECA and illuminate the benefits of having an ECA.

ECA: What is it and how does it work?

Directing your lawyer to create an ECA could be the most powerful tool you have in saving time and money when getting a handle on your case. A well thought out ECA should predict the factual and legal issues relating to your case, any litigation costs and the required time needed to defend your case. Armed with this information, you can then decide whether you want to go forward with your case, seek mediation or look into settlement options.

To get things started visit your attorney and describe how the lawsuit occurred. This meeting should occur as soon as possible to ascertain early on, and not days before trial, if your case has a problem. After this initial consultation provide your attorney with copies of all correspondence, contracts and documents pertaining to the dispute. Do not forget to include emails as well. This information will allow your lawyer to create an ECA that will usually include a preliminary legal analysis of your case and any applicable legal defenses.

After your attorney has determined your cases’ legal angle assess what the your economic costs will be by asking your lawyer how much it will cost to defend your case. Be sure to inquire about court legal fees and any additional fees associated with your case. Examples of additional fees may include court reporters, copying charges, travel expenses and any expert fees. In addition ask if you can recover these expenses if you win and if you would need to pay them if you lose the case.

Finally, discuss with your attorney how much time will be required by their firm to defend the case. Specifically, focus your questions on discovery since this phase usually proves to be the most costly. Identify individuals to be deposed, ask for an estimate of the time required for their preparation and deposition, and factor in any travel time. Finally, inquire about anticipated document productions and whether any site inspections
may occur during your case.

The Benefits of Having an ECA

At this point, if you are still on the fence as to whether you need an ECA please consider the following benefits associated with having a properly executed ECA. First, as mentioned above, you will be able to obtain a preliminary legal analysis of your case, a monetary cost estimate of expenses to come and a prediction of the time that needs to be devoted to your case. In addition, your dispute will be put in a more objective light because your attorney, a person other than the parties to your case, will review the facts, circumstances and applicable law. Too often people become blinded by their own involvement in a matter---have your attorney draft an ECA for you to counter this bias. Lastly, and arguable most importantly, the chief benefit of an ECA will be the peace of mind it offers by recommending a particular course of action for your case. This will allow you to make an informed and educated decision when deciding if you would like to litigate, settle or seek mediation.