Early Case Assessment – Overlooking the Obvious, ECA is Case Management

20
Nov
2014

Richard Spies

The first complaints haven’t even been filed, but they’re coming. The ether is abuzz and there’s traction – so, more than likely, there will be legal action to follow. 

Because this isn’t your first rodeo, you already have “The Plan.” Your Early Case Assessment (ECA) Dream Team is in place, always ready for action. Legal hold, research, document review, facts and issues database, budgeting and other tools … check, check, check …  

Q: What’s missing? 

A: Maybe it’s the case management system. 

Case management software or systems (CMS), designed for highly complex and large-scale actions, offer the capacity and depth to manage extreme litigation scenarios through the entire case life cycle. ECA is not just part of the life cycle; it is intended to anticipate and define it. 

Experienced law firm partners representing major corporations are focused on effective management of inherently complex ECA data. They are using CMS because it has the relational and content sophistication to accurately render the full picture of a case from a comprehensive data set, and the practice tools to organize, systemize and manage the ECA initiative.  

Unlike other tools adapted for ECA from e-discovery, timeline assessment and other processes, the benefits of CMS do not end at this early stage of litigation. They help attorneys and staff manage the continuing stream of complex, multi-faceted projects using purpose-specific workflow processes, calendars and reporting that consolidate data to deliver the information relevant to the given task or responsibility. 

Five Components of Successful ECA

The goal of Early Case Assessment is to determine the risks and benefits of a case and create the most effective strategy to defend legal actions. This simple statement doesn’t begin to describe the mammoth proportion of the undertaking. 

There are five key components required for ECA success.

1. The plan
2. The team
3. Tactical technology 
4. Data assimilation technology 
5. Practice management capacity

The Plan and the Team

The plan has to address everything from the full-tilt pursuit of intelligence gathering and assessment to risks and exposure analysis, managing legal hold, preservation, motions practice and so on, with due consideration for every phase of the case through disposition. There are hundreds of factors that could well extend beyond civil to regulatory, corporate and even criminal exposure.

The core team members are actively engaged in the evolving picture, covering as much ground as they possibly can in a limited timeframe with a lot of moving parts. Their specialized skills ensure that every opportunity to identify, capture and assess relevant information is properly executed. This requires the proper tools.

Tactical Technology

The team uses a variety of technologies to identify parties and check backgrounds, conduct and document interviews, manage legal hold, cull ESI, research case and settlement histories, review insurance policies and relevant documents for facts and issues, and the other myriad work and processes of ECA. 

Identifying and capturing information using various means and methods, however, is far from using it effectively.

Where most technologies leave off is where advanced CMS technology excels. CMS for major litigation is designed to manage complex data, people, work processes, tasks and information flow (i.e., the practice systems) to align them with the defined objectives – and that’s precisely what ECA demands. 

ECA success hinges on the ability not only to find the relevant discrete elements that make up the case, but also to bring them together in a manner that supports the objectives. Not only does it logically follow that the data and management capacities of CMS would be put to great effect for ECA, but also that the ECA process poises the CMS for subsequent phases of the litigation.  

Expansive Data Records

“Data objects” are classes of records or groups of records that represent the various case components, such as the people and organizations, documents and dates. Most CMS systems allow data objects to be categorized to meet the needs of the case. For example, contact records may have “Types” that include Attorney and Staff, Witness, Expert, Plaintiff, Defendant, Client, Health Care Provider, Opposing Counsel, Insurer and more.

These record categories provide context that can determine which data fields populate the record to meet its particular use (e.g., an expert may have credentials with an attached CV, while an eye witness has background data that may be relevant to his point of view).

Case management systems typically manage core data objects: those representing people and organizations, cases and claims, documents and other electronic files that are part of any litigation. 

Complex litigation requires a broader variety of data objects because it deals with more factors that apply to more than one circumstance, such as a document that is relevant to more than one case. Just as you would lose the ability to apply information from a document to more than one case if it were captured only at the case level, the data for other objects has to reside in its own discrete container to share its attributes. 

Having an array of independent data objects that can be tied to other data objects and content is critical to data integrity. 

Complex Litigation Data Examples

These examples of specialized records can be applied to various scenarios with good effect:

• Event History: A record of activities as of a date or date range that can be categorized to track the series 
• Site: A physical location
• Product: Specific manufactured product or any physical object

For work-related litigation, the Event History category may be labeled “Job History,” and Plaintiff Joe’s contact record can be linked as the Employee. Tie in the Site, “Acme Plant #4,” then Products labeled “Chemco Cleaner” and “Chemco Solvent.” Now we see the story of Joe’s possible exposure to known toxins. If the Employer is linked to the Job History, perhaps the Landlord to the Site or the Manufacturer to the Products, we have three potential defendants all cleanly related through the various data object associations.

If this scenario is expanded to hundreds or thousands of plaintiffs, we have a map of the sites where products were used and the date range per the history. As data is added to any one record it can ripple through the system. We can stratify risks, identify inconsistencies and focus our efforts based on facts.

Now change the scenario to a toxic spill into a watershed. Event Histories become incidents and responses, the sites apply to the initial spill, pinpoint alleged incidents, and track points of periodic testing with documented results. 

The data structure of the CMS lends valuable flexibility and insight into the ECA process.

Data Assimilation Technology

Just as with any complex litigation, the CMS should be set up to reflect the requirements and facilitate the objectives of the ECA. The plan is the ideal roadmap for configuration.

Develop a CMS configuration plan to outline how the technology would be applied to each plan item and the ECA as a whole. Once configured, the system should be adaptable as circumstances dictate.

Data Structure – Everything in its Place 

The CMS is the central information hub supporting the ECA. Every piece of ECA data should have an appropriate place in the CMS. Managing record content effectively provides the means to capture any relevant data and lend it context from other system data. For example:

• As parties and witnesses are identified, contact records provide reportable data fields reflecting the information obtained via interviews, background checks and media. Documents can be attached for reference as well. 
• As facts are identified, they can be tracked in the case. For each fact section the dates, people, documents, comments and other relevant data objects are captured. Each section acts as a reportable record to create timelines, identify conflicting data and provide analysis.
• Research data is easily captured and linked to the source document or website with summary information for notes and review. 

Document review data, attorney and expert review notes, record status and practically every piece of information has its place in the data structure.

Data Capture

Data obtained from a variety of sources, with inconsistent formats, is not conducive to simple electronic capture. The exceptions are generally uploading documents and perhaps standardized forms, such as contact or email records.

Integration between document review applications and the CMS database to upload notes, tags and other data is a big step. Setting up the data records to easily enter notes and content and attach source data also streamlines the process.  

Reporting is a Must 

Solid reporting capabilities are not optional – they’re critical to both data assessment and practice management. 

Report generators that query across related records with variable criteria are effective in the right hands. Third party software or software developed in-house are options if your team has the know-how. 

Practice Management Capacity

Practice management isn’t technology. Done right, it’s a well-designed and executed plan to achieve leadership goals. It depends on people, data, processes and technology to execute the plan effectively.

CMS supports practice management by providing the tools to organize and systematize the practice to improve efficiency, consistency and reliability. 

These tools are used to define and manage processes, support and monitor best practices, create job-specific and collaborative calendars, and bring together data from across the system in a form that helps every team member work more effectively.

Complex litigation CMS have features to manage data manage and modify information in groups and batches that save time and ensure consistency.

CMS tools provide better access to relevant, contextual information, helping every team member and management to be more effective, making everyone involved in a case more valuable. With easier access to more information about every case, firms become an indispensable partner on every client’s legal team. 

Conclusion

To provide the most effective representation possible, attorneys today are evaluating their clients’ very complex data early in the game to determine the merits of every potential case. More experienced attorneys are using case management systems for ECA because these tools have the relational and content sophistication that can give them the most accurate insights into a case using a complete data set. 

These attorneys and their firms are benefiting further because CMS does not end at this early phase of litigation. They help attorneys and their firms continue to manage complex, multi-faceted projects – and better serve their clients – using reliable, consistent data through the entire life cycle of the case. 

And finally, it’s a repeatable process that is well documented. Refine, standardize and expand the utility of the CMS with every case, and use that historic record to better anticipate what will happen on the next big case.