early case assessment pilot program u.s. department of the interior
TRANSCRIPT
Early Case Early Case AssessmenAssessmen
ttPilot Pilot
ProgramProgramU.S. U.S. DepartmeDepartment of the nt of the InteriorInterior
Early Case Assessment
A pre-determined, systematic, and uniform process used to evaluate claims and ensure appropriate, efficient, and cost effective dispute resolution.
Improved internal and external relationships
Improved communication between client agencies, the solicitors’ offices, the DOI offices and the DOJ
Improved ability to recognize and identify dispute/claim patterns
Better decision-making processes when faced with similar issues in future disputes
Early Case Assessment
Program Benefits
Appropriate evaluation of suitability of cases for ADR or litigation
Consistent approaches to matter types Effective identification and evaluation of
legal/litigation trends Decreased discovery needs Reduced “claim-through-resolution”cycle time Increased structural and operating efficiencies
Early Case Assessment
Program Benefits (cont.)
Early Case Assessment
Program Benefits (cont.)Reduction in caseload
Increase in ability to develop creative solutions that satisfy more needs
Confidentiality maintainedPossible avoidance of negative
publicity Less management time associated
with disputes
“Because conflicts and disputes can interfere with the accomplishment of our missions, a successful
executive should deal with such situations effectively and efficiently, using a wide range of
conflict management tools to enhance consultation, cooperation and communications. ”
Excerpt from Secretary Gail Norton’s Memorandum regarding SES Performance Agreements - April 5, 2001
DOIDepartmental Goals
Goal of the Early Case Assessment Pilot
Program:To provide client agencies, solicitor’s office
and, when necessary, the DOJ, with the key factual, legal and “next step” information to
enable them to make informed decisions regarding disputes, claims and litigation in order to reduce volume and cycle time and
to achieve successful resolutions
Goals and Objectives
Facilitate dispute prevention, identification and earlier resolution
Create a process where ADR is routinely applied Maximize efficient use of all resources Enhance control over decision-making for
solicitors and client agencies Expand role and capability of solicitor to be
dispute resolution specialist
Goals and Objectives
(cont.) Provide opportunities for clients to use ADR to
resolve disputes quickly, fairly, and efficiently Resolve conflict in a manner that satisfies as
many parties as possible Reduce case load and corresponding workload
Project Status
January 2001: Needs Assessment Initiated February 2001: Needs Assessment Completed
Report and RecommendationsSubmitted for Consideration
March/April 2001:Report and Recommendations Reviewed by DOI,
Washington and Atlanta Regional Solicitor’s Office
May 2001: Atlanta Regional Solicitor’s Office Begins Implementation of
Early Case Assessment Pilot Program
ECA Creates Opportunities for
Cooperation, Consultation and CommunicationECA Process Facilitates:
Coordination of activities of multiple parties
Inter-agency cooperationIncreased communication
between groups and agenciesIdentification of all
stakeholders and interests affected by dispute
More efficient use of resources
Bringing Departmental Goals to the ECA
Program Implementation
“Consultation, cooperation and communication between the Atlanta Regional Solicitor’s Office, its Clients, the
DOJ, and Washington DOI Representatives is essential for successful implementation of the Early Case
Assessment Program.”
National Parks
Implementation of ECA Pilot Program
ECA Pilot Team must focus on:
Dispute Identification Analysis Resolution Flexibility and
Communication
Recommended DOI Early Case Assessment Process Flowchart
The Atlanta Regional Solicitors should encourage and model increased early communication to facilitate the compilation and analysis of data.
Dispute identified
Responsibilities assigned and time frames confirmed
Data elementscompiled & analyzed
Early abbreviated
factual review
Early abbreviated legal review
Review of relevant
Department historical
experience
External & internal
economic analysis
Program Administrator
records matter & ECA process
initiated
ECA Reportcompleted within:
Resolution strategy and/or
dispute management plan discussed andimplemented within
30 days of ECA report
“Lessons Learned” conducted
by responsible solicitorwithin 30 days
of final disposition
If matter not resolved, ECAReport updated regularly as
new information becomes available and ECA Report
forwarded to DOJ
Review of general
historical information
Analysis of non-
economic risks/
benefits
Early abbreviated
damages analysis
Contracts:90 days
ESA CivilPenalty: 60 days
HCPs:60 days
NRDs:150 days
Torts:90 days
Land Issues:90 days
ImplementationDispute Identification
Matters Referred to the Pilot ProgramContractsESA Civil PenaltyHabitat Conservation PlansNatural Resources DamagesLand Use IssuesTortsAny other matters deemed appropriate by
the Regional Solicitor’s Office
Matter-specific early abbreviated factual review
Matter-specific early abbreviated legal analysis
Matter-specific early abbreviated damages assessment
Review of relevant Department historical experience
Review of general historical experience
Data Elements Dispute Analysis
External and internal economic analysis, including time valuation of personnel
Analysis of non-economic risks/benefits, including policy considerations
Other relevant matter-specific or general information
Recommendation for resolution strategy, which may include dispute resolution selection screens
Early Warning System Insight
Data Elements (cont.) Dispute Analysis
Administration and Follow –
ThroughThe ECA Program Administrator:
– Initiates ECA for each matter– Facilitates ECA process from start to
finish– Ensures “decision makers’ package” is
compiled– Coordinates early resolution efforts– Tracks evaluations and prepares reports– Coordinates continued communication– Acts as a Program contact– Coordinates analysis, measurement and
improvement of the program
Conducting the Assessment
1. Expedited Factual Investigation
Development of standardized checklist for items needed for the expedited investigation
Gather information Preparation of Fact Summary by Solicitor
Conducting the Assessment
2. Abbreviated Legal Analysis Review controlling law including:
Elements required to state a claim Controlling time guidelines Relevant statutes, regulations and policies Affirmative defenses that may be dispositive Unique requirements due to jurisdiction Factual issues that are relevant but unascertained Other legal issues necessary to prepare a legal
recommendation for this matter
Conducting the Assessment
3. Abbreviated Damages Analysis
Risk assessment of each claim
Prioritize issues within each matter
Narrow scope of claims
Determine whether an expert will be required
Conducting the Assessment
4. Review Relevant Department History Coordinate with client agency to
review prior relevant disputes Predict potential scenarios Network with other regional solicitor
offices regarding relevant disputes
Conducting the Assessment
5. Review General History Verdict outcomes Damage awards Success of similar claims Length of litigation process Settlements or resolutions Other relevant public records or
other information
Conducting the Assessment
6. Conduct External and Internal Economic Analysis External fees, expenses, costs
Outside counsel Other litigation costs
Internal fees, expenses and costs Internal Solicitor’s time Client agency professional and witness time
Conducting the Assessment
7. Identification and Analysis of Non-economic risks/benefits, including: Policy Considerations Importance of establishing precedent Effect on internal and external relationships Client satisfaction/customer service Department’s reputation Public relations (satisfying stakeholders) Employee morale Confidentiality Dispute cycle time Increase/decrease in volume of future disputes
Conducting the Assessment
8. Consideration of other relevant matter-specific or general information:For example, historical information about public interest groups, such as: Organization’s stated positions and interests Prior involvement, issues or disputes and
their outcome
Conducting the Assessment
9. Recommendation for Resolution Strategy Negotiation and settlement guidance Early resolution through ADR
processes Use of resolution/settlement counsel Litigation strategy
Conducting the Assessment
10. “Early Warning System” Insight Summarize lessons learned Recommend corrective action
Early Case Assessment
Report
• Summarize the above data elements• Assessment of the goals and objectives for
all parties to the dispute• Identification of the range of monetary
settlement that would be a good result• Identification of any non-monetary solutions
with potential to resolve the dispute• Preliminary dispute management plan• Preliminary case management plan
Program Tracking
Analyze program effectiveness Develop value measurements Identify business and legal trends to
help DOI become more proactive in its approach to conflict
Ability to demonstrate tangible and intangible benefits of the Program
Easily identify Program “hot spots” and quickly create improvements
Next Steps
May – June 2001: Preparation of Program Documentation
June – July 2001: Development of Training and Communication Material
July – Aug. 2001: Development and Implementation of Program Analysis, Measurement and Improvement Protocol