Early Neutral Evaluations

Early neutral evaluations (ENE) are often used by clients as the first step towards resolving a dispute. In fact, a successful ENE will often prove to be the first and only step necessary towards reaching a resolution because it provides a reality-check for parties, which leads to an early resolution outside of court. Attorneys and their clients alike prefer an ENE because it provides them with an accurate assessment on the realistic outcomes for either side. Even if parties choose to proceed with litigation after an ENE, surveys have shown that all parties eventually reach a resolution much more quickly, when compared to not using ENE. Further, an early evaluation by a neutral expert can serve as a cost-effective approach to discovery and pretrial motions for all parties involved in a dispute. 

The goals of an Early Neutral Evaluation (ENE) are to:  

• enable parties to directly communicate their claims to each other, and allowing them to provide evidence to support their claims, 
• a neutral expert will provide an assessment on the merits of claims, 
• provide a “reality check” for clients and lawyers, 
• identify & clarify the core issues in dispute, 
• assist with discovery of facts and pretrial motions, 
• informal exchange of key information for the clients and lawyers, 
• facilitate settlement discussions for an early resolution before trial

The process of an Early Neutral Evaluation (ENE) is: 

1. An informal process, each side presents their evidence to the third-party neutral and opposing parties; Rules of evidence and direct/cross-examination are not permitted. 
2. The neutral identifies areas of dispute and provides clarification on issues in question, including possible assessment. 
3. The neutral provides a written evaluation in private which may include: estimates and dollar ranges of damages, and an assessment on the strengths/weaknesses of each side, including the reasoning to support the assessment. 
4. Any party may request a presentation of the assessment, or they may opt to postpone the presentation to dive deeper into a focused discovery of facts, or to engage in settlement discussions with the neutral facilitating between sides. 
5. If settlement is not reached, then the neutral will help the parties create a plan for further discovery to push key facts that may assist in reaching a settlement. 
6. Further, the neutral will help parties assess their future litigation costs. 

Confidentiality is maintained throughout the entire process - No one may be informed of the discussions had in ENE, including the judge. 

When to use ENE? 

All civil cases are eligible for ENE, however, some cases are better suited than others. The following circumstances have the most success: 

• counsel or the parties are far apart on their view of the law and/or value of the case 
• parties requiring assistance with case management
• communication between the parties is poor
• fair and equitable relief is sought between both parties