Even the most competent and experienced construction lawyers
have great difficulty putting their
biases aside when trying to determine how an independent and impartial decision-maker
would decide the case. So, assuming that settlement is not likely, how does a party go about trying to assess
the prospects of winning or losing—before going to trial?
Neutral Analysis
Neutral Analysis
refers to a group of ADR techniques, including pre-file evaluations,
brief-based case evaluations, second opinions and mock exercises, which help counsel assess their likelihood of
success or failure before walking into a courtroom or arbitral tribunal.
Attorneys and their clients may have many questions pre-filing:
which of your claims are likely to be successful and which are not? How will
the trier of fact likely react to your fact witnesses and experts? Would a
dispositive motion likely be successful? What are the chances that the
construction contract limitation of liability or notice provisions will be
strictly enforced?
Pre-File/Brief-based Case Evaluations
Putting these questions to an independent party who has
similar expertise and experience as the trier of fact can be immensely useful
to a party contemplating suit. The evaluator can be engaged on a number of
levels: she may review the complaint pre-filing and act as a sounding board
to help develop counsel’s theory of the case; she might also help reassess settlement options, or manage client expectations about the
likelihood of success.
Mock Arbitration
Similarly, a mock arbitration
involves presenting a summary of a party’s case to one or more independent
persons who have similar expertise and experience as do the actual arbitrators.
The key difference is that this can be done before going to the actual hearing.
The mock arbitrator(s) will hear the case presentation, which includes a
summary of the opposing party’s positions as well, and offer their candid views on a confidential basis of how your case
strategy would appear to an experienced, neutral third party.
If the case relies on documents, which documents are likely
to be critical to the outcome? Having critical and honest feedback on issues
like these—from persons who have no
stake in the outcome— will allow you to adjust your case presentation
strategy and tactics before it’s too late. Or, perhaps, after the mock
arbitration, you may decide to settle
on less favorable terms or even to abandon the case.
Perhaps the most important aspect of any mock is that the opposing party’s positions and arguments
are presented credibly and persuasively, and this is typically done by
having another lawyer in the appointing party’s law firm make that presentation.
The standard practice is that each side’s position will be presented in the
form of a general background statement—much like an opening statement in a
trial—perhaps followed by presentations by expert witnesses, and with the use
of PowerPoint demonstrations of documentary evidence. The typical case
presentation will take one day or less, but in some complex cases, mock
arbitration presentations can last several days.
Confidentiality
Of course, it is critical
that the neutral evaluation process be kept strictly confidential.
Therefore, an agreement should be made with the neutral that any and all
confidential documents and other information that they receive, or any comments
or advice given during the course of the evaluation, will be maintained in
strict confidence with the appointing party.
Summary
Certainly, a mock exercise will add to the case preparation
costs, but the expense of a mock is usually a small fraction of the total cost
of preparing for and putting on the actual case. What is more sobering is the
prospect of expending the considerable time and cost of going through the
actual matter with a weak or less-than-persuasive case presentation. Because
the cost of mocks and other neutral evaluations can be managed to fit the
party’s needs, using them will usually be cost-effective. It is almost always the case that a party will make productive
adjustments in its case based on feedback from the evaluation and will
agree that the overall benefit of the exercise was worth the additional cost.
John W. Hinchey, Esq. is
a panelist with JAMS based in Washington, D.C. He is recognized in the United
States and internationally as a leader in resolving significant engineering,
infrastructure and energy-related disputes as an arbitrator and mediator. He
can be reached at jhinchey@jamsadr.com.
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