Chess, Not Checkers: Strategic Planning and Early Case Assessment in Complex Litigation

In our first post in the series, we discussed the key elements of effective management of complex litigation, including an overview of complex litigation. We examined the importance of early-stage strategic planning, setting defined objectives, and using generative AI and other advanced technologies to streamline that strategic planning.

In order to effectively manage complex litigation, you need to know what success looks like. There are different measures of success beyond the outcome of the litigation and it’s important to identify those success factors and the best practices to achieve them. Strategic planning and early case assessment for complex litigation are critical to good outcomes and leveraging advanced technologies. In this post, we will discuss strategic planning and early case assessment (ECA) in complex litigation to maximize success.

What Does Success Look Like in Complex Litigation

Before we get into how strategic planning and ECA can help to maximize success, it’s important to know how to define success. In complex litigation, success for a company fighting claims can be multi-dimensional, encompassing both legal and business outcomes. A company can achieve a favorable legal outcome, but it can come at a cost not worth the victory. Here are four factors that define success in complex litigation:

• Favorable Legal Outcome: OK, this one’s obvious. Achieving a favorable verdict, dismissal, or settlement is often the foremost indicator of success. This could mean winning a motion to dismiss early in the process, securing a judgment in the company’s favor, or obtaining a settlement that minimizes liability. Obtaining a favorable legal outcome is important, but it’s only one measure of success in complex litigation.
• Cost-Effective Resolution: Achieving a favorable outcome but gutting your company financially to do so is a hollow victory. Success includes not just a successful case outcome but achieving that outcome in a way that is cost-effective. This means controlling legal fees, discovery expenses, and expert witness costs. A strategically managed litigation process that stays within budget can be a significant measure of success, even if it involves a settlement rather than a favorable trial verdict.
• Setting a Precedent for Future Litigation: In some cases, a company may view success as setting a winning legal precedent that discourages future claims or defines favorable legal standards for its industry. This is particularly relevant in industries facing repeated or systemic litigation issues, such as product liability cases. Winning a case or obtaining a judgment that sets a positive precedent can help to protect the company from similar claims down the road.
• Reputation Management: Protecting the company’s reputation throughout the litigation process is often as important as the legal outcome itself. Success in this context might mean managing or mitigating negative publicity and maintaining a positive image throughout the legal battle. When the litigation is over, there is still a business to run, after all.

Complex litigation can often turn into “bet the company” cases in terms of costs, potential damages, reputation, disruption to business operations and more. It’s important to define success as early in the litigation as possible so that you can develop a plan to get there.

The Importance of Strategic Planning and Early Case Assessment in Complex Litigation

You may already understand the importance of strategic planning and early case assessment in typical litigation cases. Strategic planning and ECA are even more critical in complex litigation due to the scale, stakes, and intricacy of these cases. Given that complex litigation often involves large volumes of data, numerous parties, multifaceted legal issues, and high financial or reputational stakes, it’s even more essential to develop a strategic plan from the outset to effectively manage discovery, control costs, and align legal strategy with the client’s goals.

Likewise, ECA is important because it enables legal teams to evaluate risks, identify key evidence, and assess the merits of the case before fully committing to a specific course of action. Data drives litigation today. In complex litigation, where potential outcomes and exposure can vary widely, understanding your strengths and weaknesses early in the case helps to avoid costly surprises later. ECA allows legal teams to focus on important issues, streamline discovery efforts, and develop a data-driven strategy that informs whether to pursue settlement or litigation. Strategic planning and early case assessment go hand-in-hand in any litigation – they are even more intertwined in complex litigation to drive success.

Without a clear plan and understanding of the evidence, the risk of wasted resources and missed opportunities increases substantially in complex litigation. There are simply more things that can go wrong, and the impact of those mistakes is magnified. Strategic planning and ECA up front are mandatory to mitigate the risk of mistakes in complex litigation.

Leveraging Generative AI to Prepare for Complex Litigation

The ability to leverage technology is the most effective way to streamline litigation management, especially for complex litigation. And – guess what? – leveraging generative AI can play a big role in that planning process.

GenAI can significantly enhance strategic planning in complex litigation by quickly analyzing large volumes of data and generating insights that inform decision-making. With genAI, legal teams can use that analysis to identify critical facts and potential issues more efficiently, enabling them to develop arguments, uncover potential risks, and align their approach with the client’s goals. This not only saves time, but also enables a more focused allocation of resources towards areas that are most likely to impact the case’s outcome.

From an ECA perspective, genAI can simulate different litigation scenarios and their associated costs, helping legal teams to perform a more accurate cost-benefit analysis. This data-driven approach ensures that decisions made during ECA are based on a deeper understanding of the potential challenges and opportunities, making the overall strategic planning process more effective.

Conclusion

“Every battle is won before it is fought” is a famous quote attributed to Sun Tzu, a renowned Chinese military strategist, from his book The Art of War. In complex litigation, you may not win the battle before it’s fought through strategic planning and early case assessment, but you can certainly lose it! It’s important to work with a team of experts who can not only help identify the factors for success, but also help your legal team put together a strategic plan for achieving those success factors.

In our next post in the series, we will discuss the importance of understanding your data sources before litigation to address your preservation and collection challenges, as well as strategies for when to apply different approaches to collection!

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