Element Five: Review of General Historical Information (as available)
The Early Case Assessment Pilot Program ("ECA Pilot Program" or "Program") will provide a vehicle for the agencies of the Department of the Interior (DOI), through the Atlanta Regional Solicitor's Office, to proactively reduce the volume and cycle time associated with disputes, claims and related litigation in the areas of contracts, ESA civil penalty and forfeiture issues, habitat conservation plan issues, natural resource damages, land use issues, torts and any other matters deemed appropriate for inclusion in the Program by the Regional Solicitor. Simultaneously, by identifying matters for which an early effort at alternative dispute resolution (ADR) is likely to be fruitful, the ECA Pilot Program will enable members of the Atlanta Regional Solicitor's Office to utilize effective communication skills in consulting, and where appropriate, cooperating with interested and affected parties to achieve effective resolutions that address the needs of all stakeholders. Thus, the focus of the program is the appropriate assessment and resolution of disputes as a part of a systematic process.
The overall objective of the ECA Pilot Program is to provide the client agency and the Solicitor's Office (and the Department of Justice, or DOJ, when necessary) with key factual, legal and "next-step" information required to enable them to make informed decisions regarding resolution and/or dispute management strategies for pending disputes. Each attorney plays a key role in facilitating this early case assessment process from start to finish with regard to those matters included within the pilot program. The early case assessment should be in as succinct a format as possible and completed within an abbreviated time frame to enable faster and more effective decision making. The initial time spent on the early case assessment is an investment - one designed to maximize the chances of favorable resolution, and minimize discovery and reduce expenditures if the matter proceeds.
These guidelines, and the other materials provided in the ECA Handbook (along with training to be conducted during the late summer as part of the implementation of the ECA Pilot Program), are designed to assist the attorney handling a given matter by providing the necessary tools for quickly collecting and evaluating key information related to a dispute. It is understood that each Solicitor's Office attorney, working in conjunction with the appropriate agencies and personnel, will use independent judgment to perform the most useful assessment possible within the time frame appropriate for each category of matters included within the ECA Pilot Program. To facilitate these assessments, it is imperative that each matter received be handled in an established, uniform manner, and that the final report be presented in a standard format and utilized by the client agency, the Solicitor's Office, and, when appropriate, the DOJ, in attempting early resolution of a dispute. When an early favorable settlement is not foreseeable, the early case assessment will fill another immediate need. It forms the basis for a deliberate and focused dispute management plan, which charts a course designed to achieve desired litigation goals through the timely implementation of discovery and investigation techniques. As additional information is gathered, it can be incorporated into the assessment, and the conclusions from the assessment can be continually re-evaluated. Thus, the assessment is iterative so that it can be continually updated and refined throughout the course of a dispute, as well as flexible so that at all times in the life of a dispute there is a clear sense of its status and value.
Depending on the dispute, it may be necessary to utilize the resources and expertise of both internal and external agencies and experts to compile the most comprehensive package of information and to secure a thorough assessment of the data elements required. To the extent resources outside of the Solicitor's Office are called upon to assist in the assessment, a summary of the program's goals and objectives is included in the ECA Handbook and can be distributed to the appropriate parties. It may be helpful for each Solicitor's Office attorney to identify internal and external resources regularly used and to share both the summary and the program guidelines so that all participants to the process are fully aware of their roles and responsibilities in conjunction with this pilot program. The collaborative sharing of information among DOI professionals is critical to the early case assessment and the earlier resolution of disputes. The program summary will also be useful when actively working to facilitate resolution between parties to a dispute by explaining the existence of the program to the parties and demonstrating that the DOI has this program in place to systematically work toward earlier resolutions when appropriate.
It is important to determine the threshold for conducting an early case assessment and the amount of information gathering and analysis that will be required for each assessment. Currently, all new disputes in the following areas will be included in the ECA Pilot Program (unless unusual circumstances dictate that a case might be inappropriate for inclusion into the Program), and an assessment will be conducted within the referenced time frame:
|Endangered Species Act civil penalty issues||60 days|
|Habitat conservation plan issues||60 days|
|Land resource damage issues||150 days|
|Land us issues||90 days|
|All other matters deemed appropriate for inclusion by the Regional Solicitor||TBD|
These time frames were developed in consultation with the attorneys who work on these matters, based upon the anticipated amount and level of complexity of the relevant data to be collected. During the pilot program, the project team will also work together to determine which currently active matters in these categories would benefit from inclusion into the early case assessment program.
The level of analysis and time spent on each case will vary depending on the type of case, the complexity of the issue, the actual amount in controversy, the potential for negative publicity or adverse reactions, the stakeholders involved and the potential impact on future disputes. It is not anticipated that the rigorous analysis described in these guidelines should be conducted for every assessment. Rather, Solicitor's Office attorneys should follow a uniform process with regard to the data elements analyzed. Thus, in all cases the process followed should be consistent. As was noted in the Report and Recommendations resulting from the Needs Assessment conducted for this Pilot Program, under the early case assessment model, lawyers are not just collecting information; they are collecting the right kind of information as quickly as possible to support a realistic evaluation of the dispute and the development of a resolution plan. Because the concept of early case assessment is relatively new and innovative, and because this is a pilot program, the program should be flexible enough so that it can properly evolve. Like the ADR processes that will hopefully be utilized as a result of the successful implementation of this early case assessment program, the program's design and use is limited only by the needs and imagination of its users.
The benefits of exposing cases to a systematic process include: earlier and more effective resolution, reduction of costs of resolution, and the ability to identify claim and litigation trends that assist the client agencies in preventing future disputes. Communication between DOI attorneys, their clients and other stakeholders will also be improved through the use of this systematic process.
Once a dispute is identified for the Program by the Regional Solicitor and/or the Deputy Regional Solicitor, the ECA Program Administrator will record the dispute and initiate the early case assessment process for each matter. The Administrator will also track the matter's progress and facilitate the early case assessment process in its entirety. Tracking and reporting guidelines for the ECA Program Administrator, along with model reporting forms, will be developed during the implementation of the Pilot Program and be included in the final ECA Handbook.
For each dispute included within the ECA Pilot Program, a Dispute Resolution Team will be identified and coordinated to include the Program Administrator, the responsible Solicitor's Office attorney, a representative from the client agency (or agencies) involved in the matter, any internal professionals (e.g. economists, scientists, specialists, etc.) and any other providers deemed necessary to the successful assessment, and ultimately resolution, of the dispute. The appropriate Bureau Dispute Resolution Specialist(s) should also be made aware of the matter and kept apprised, although this individual will not necessarily serve on the Dispute Resolution Team.
The Dispute Resolution Team will then meet to assign responsibilities and confirm time frames. The Team should begin its mission by determining the severity of the dispute and determining how thorough the early case assessment needs to be.
Thereafter, the Dispute Resolution Team should consider:
- Whether there are any additional internal stakeholders to be included or informed about the process;
- Which data elements might be determinative;
- Time line for each data element to be researched and / or determined;
- Time frame for assessment to be completed; and
- Scheduling of regular calls/briefings to ensure assessment is on track for completion within the allotted time frame.
Information concerning the following eight (8) data elements should be compiled and analyzed by the Dispute Resolution Team within the time frame referenced above for the respective category of matters:
Solicitor's Office attorneys will gather information through client input, interviews, document reviews and other fact-gathering processes. The attorneys will complete a checklist that will serve as the foundation for the Early Case Assessment Report. The factual investigation is expedited, and therefore, is not intended to be comprehensive or complete, merely accurate at the point in time it is completed.
Once the factual investigation is complete, the responsible Solicitor's Office attorney will analyze all the legal information available at the time of the early case assessment. The Solicitor's Office attorneys will review the controlling law, including:
- Elements required to state a claim;
- Controlling time guidelines;
- Relevant statutes, regulations and policy considerations (as well as the activities or agendas of relevant steering committees or agencies);
- Affirmative defenses that may be dispositive or otherwise relevant;
- Unique requirements due to jurisdiction;
- Factual issues that are relevant but unascertained at this time;
- Identification of potential important principles or precedents at stake;
- Assessment of best case/worst case scenarios and estimate of likelihood of each;
- Other legal issues necessary to prepare a legal recommendation for this matter.
Again, this written analysis of the legal issues involved in a matter is meant to serve as a "snapshot" of the case at a certain point in time. It should be an abbreviated analysis and based solely upon the information currently available.
Although more relevant in contracts, torts and NRD cases, an abbreviated damages analysis should always be considered for the ECA Report. The Dispute Resolution Team should also give careful consideration as to when an outside damages professional should be retained.
An early damages analysis can provide the client agency and the Solicitor's Office with the information needed to efficiently prioritize their time according to which issues in any given matter involve the greatest risk. Additionally, in torts and contracts matters, pushing claimants to define and support their damages early may serve to narrow the range of possible outcomes and increase the possibility of reasonable settlement. When the damage estimates are more accurately refined at the front-end, parties may be less willing to spend resources pursuing liability theories not justified by the potential recovery.
The typical abbreviated damages analysis report could include both narrative and quantitative sections, commenting on:
- Quality of documentation produced;
- Extent to which documentation could support representative positions;
- Identification of missing documents, and their possible importance to the final determination of damages (if any);
- Estimated ranges of possible damages;
- Narrative on the computation method employed in analysis;
- References to documents relied upon in analysis;
- Details on any assumptions incorporated into analysis;
- Recommended next steps; and
- Any other relevant damages-related issues.
The abbreviated damages analysis report should also include information on the reliability of the computation methodology employed in the analysis and its acceptance among respected experts.
The responsible Solicitor's Office attorney should work with other attorneys in the Solicitor's Offices and DOJ, as well as other DOI professionals, to collect internal historical information that will be useful in evaluating the dispute. Sources vary depending on the nature of the case but typically will include:
- Attorneys within the Regional and/or Headquarters Solicitor's offices with relevant experience on similar matters;
- Agency client contacts with knowledge of the relevant issue(s);
- DOJ attorneys with relevant experience on similar DOI matters; and
- DOI / Solicitor's Office Databases. DOI attorneys should lead a review and compilation of any information in the DOI, Regional, and/or Headquarters Solicitor's Office databases regarding previous disputes that are similar to the current matter and use this historical information as a basis for sensibly predicting potential outcomes and for other purposes. [Note: Consider subscription to "Case Stream" or other appropriate database service.]
The Dispute Resolution Team should review general industry historical information available regarding similar disputes that evolved into lawsuits, including:
- Verdict outcomes/Damages awards;
- Length of litigation process;
- Success of similar claims;
- Settlements or resolutions (traditional and creative);
- Other relevant public records that might be available through database services, newspapers, wire services, internet, or other searches; and
- Any other available information.
This may include seeking historical information from DOJ attorneys with relevant general experience on similar matters.
An assessment of the estimate of internal and external fees, expenses and costs should be considered and included within the ECA Report. With respect to the cost of internal resources, a reference tool will be provided in the ECA Handbook to assist the Dispute Resolution Team in estimating the cost for time expended by the attorney(s), the client-agency professional(s), witnesses, etc. Note: The project team will continue to work together to develop a formula that can be applied in each matter to estimate the cost of going forward as it relates to this data element. For instance, a formula for estimating the costs of ADR should be included with this data element. In addition, the costs of litigation through the DOJ should also be considered.
The Solicitor's Office attorney, working with the Dispute Resolution Team and/or the client-agency should identify potential non-economic risks and/or benefits that may result from the pending dispute, including, most notably, policy considerations. Examples of potential non-economic risks and benefits include, but are not limited to:
- Policy considerations;
- Department's reputation (internal and public);
- Public relations;
- Importance of establishing precedent;
- The need to comply with FACA or other relevant Federal statutes;
- Employee morale;
- Effect on internal and external relationships;
- Dispute cycle time; and
- Increase/decrease in volume of future disputes.
The Solicitor's Office attorney should include any other relevant information that may be important to a specific matter, but not included in the standard ECA process. Of course, this will vary from matter to matter and requires the responsible attorney and the Dispute Resolution Team to exercise discretion in discerning any other appropriate issues for consideration.
Once the above data elements are compiled and analyzed, an Early Case Assessment Report will be completed by the responsible Solicitor's Office attorney and serve as a recommended resolution strategy based on the attorney's knowledge of the case at that point in time. The report will highlight the following:
- Brief summary of the above data elements;
- Assessment of goals and objectives for all parties to the dispute;
- Identification of the type of settlement that would be a good result for an early resolution in light of the above data elements and the goals/objectives;
- Identification of any non-monetary solutions with the potential to resolve the dispute;
- Preliminary dispute management plan, including use of dispute resolution screens and other ADR tools; and
- Preliminary case management plan (if appropriate) if the matter is not resolved early.
The ECA Report should be utilized internally for "next-step" purposes, including settlement, and updated regularly as the matter progresses. In addition, the ECA Report encompasses the traditional litigation report prepared by the Regional Solicitor's Office for the DOJ. If the DOJ needs or requests a litigation report prior to the time frames outlined in these Guidelines for completion of the Early Case Assessment Report, the ECA report will be completed and forwarded to the DOJ. However, the ECA report will be updated and refined as additional information is gathered.
Within no more than 30 days of issuance of the Early Case Assessment Report, the Dispute Resolution Team will meet and make recommendations regarding a resolution strategy and "next-steps" based upon all aspects of the ECA Report, which may include utilization of customized dispute resolution process selection screens to determine the appropriate use of alternative dispute resolution mechanisms. A sample ADR screening tool is available for reference in the ECA Handbook. [Note: The ECA Handbook () includes a Bibliography referencing both articles and books that may provide assistance in developing creative resolution strategies in the areas of environmental dispute resolution, public policy, and related topics. A second Bibliography on general conflict management and resolution topics is also included. Training will also be provided in conjunction with the implementation of the pilot ECA program during the late summer.]
Examples of "next steps" might include:
- Negotiation and Settlement Guidance
- Early resolution through ADR processes such as:
- Early Neutral Evaluation
- Use of Resolution / Settlement Counsel; and
- Dispute Management Plan
The ECA Report and Recommendation will provide helpful insight to the DOJ attorneys who may assume responsibility for the matter if it is not resolved.
If the matter remains unresolved, the Early Case Assessment Report should be revisited and updated regularly as new information becomes available. This can be done on a monthly or quarterly basis depending upon the complexity of the matter and the recommendations of the responsible Solicitor's Office attorney and / or the Dispute Resolution Team.
No later than 30 days after the matter is closed, the Dispute Resolution Team will meet to conduct a "post-mortem" of the case to review the effectiveness of the early case assessment and resulting resolution and/or dispute management strategy. Based upon information discovered during the course of the dispute, "lessons learned" from the dispute will be gleaned and, if applicable, recommendations for corrective action that should be taken by the client agency (or agencies) or Department to prevent future disputes of a similar nature. Recording this information will also be helpful in compiling internal historical information for future assessments, as discussed at Element Four above. A similar review can also be conducted at the outset of and/or during a matter as appropriate. During the Pilot Program, the ECA Pilot Project Team should convene at regular intervals to discuss the "lessons learned" to determine whether adjustments to the program are warranted as a result.