Achieving Optimal Evaluation of Business and Commercial Cases

First, it is important to know that case evaluation is neither a science nor really an art. Given the almost limitless known and unknown factors that shape the final litigation outcomes, perfection is almost impossible to achieve. The goal is to arrive at an 'optimal' evaluation.

When done, well, optimally, an optimal case evaluation allows lawyer and client to use their collective judgment to identify and weigh the significance of the pivotal issues that a company or individual client faces in litigation:

• Whether the client should or should not prosecute or defend the action at all;
• What resources (counsel fees, management time, settlement dollars) should be devoted to the task;
• What strategies should be pursued both within and without the litigation;
• Whether and when to consider settlement; and
• What kind of costs can or should be imposed on the opposing party.

There is another benefit to careful case evaluation. In our modern litigious climate, senior managers and counsel must be ever-mindful of the prospect of a special investigator, internal investigator, the government or shareholders (in the form of class action or derivative suit) who will try to second-guess judgments that were made in litigating or not litigating, or settling or not settling. A rational and professional case evaluation process is a good means of reducing the exposure to liability in these circumstances.