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Early Neutral Evaluation - What are your thoughts?

In practice, an early neutral evaluation is neither early, neutral, or an evaluation - agree or disagree?

Please provide your thoughts/comments below.

Comments (4)

Lawrence W Crispo:

If done after depositions and document exchanges have been completed and are submitted to the neutral evaluator, Together with statutory and appellate authorities , Along with Counsels briefs, Neutral evaluation is a very effective tool for counsels use in working with the parties towards negotiating a settlement. Larry Crispo


As Larry Crispo suggests, ENE, if done too early, is not helpful to the parties. So, to be effective, ENE cannot be too early. However, if done after sufficient discovery plus development of the law, it is both neutral and evaluative. There is nothing making it non-neutral if performed by a skilled and dedicated neutral. The evaluation is in some ways similar to a skilled mediator moving from facilitative to evaluative mode -whether through strong devil's advocacy questions or more direct evaluation - at the end of the day. The more experienced the mediator or evaluator the more likely the evaluation will be on target. What makes an evaluation problematic is the uncertainty of a novel legal theory, the sympathy a jury may or may not feel for the parties who will testify, plus the risk preferences of the parties and/or their lawyers. It is these last factors that may cause ENE to appear neither neutral nor crystal-ball evaluative.


Whether or not early neutral evaluation can be considered "early" depends on when it is conducted. In in its earliest use, early neutral evaluation is often conducted prior to discovery. However, it can also be conducted after some discovery when a little more is known about the case. The farther along in the discovery process that ENE is conducted the less "early" it can be considered. Nevertheless, ENE is always conducted prior to trial and usually before substantial discovery has been conducted, so in this sense it is always "early."

Similar to the question of whether ENE is "early," the question of whether it is in fact an "evaluation" also hinges in part on the amount of discovery conducted before the process is initiated. "Evaluation" seems to imply a thorough assessment. It is questionable how thorough an assessment could be if it is conducted prior to any discovery. The legal merits of a case can and are likely to change drastically in many cases as discovery is conducted. It is debatable whether a true evaluation of a case has occurred prior to any discovery being conducted. Given the nature of ENE as essentially a prediction of a certain legal outcome, its value as an evaluative tool increases as discovery does.

A neutral evaluator makes a prediction in terms of how they think a judge or magistrate will rule based on the legal arguments presented to them. They often additionally base such predictions on the input of experts. Given this, neutral evaluators are neutral, in that they base their predictions on a neutral view of what they perceive will be the opinions of a multitude of others. In this way their neutrality is not as pure as in situations where their determinations are not as reliant on their perceptions of the ultimate conclusions of a judge or other third parties.

Mary Austin:

ENE can be a great tool. While there are circumstances where it can come too early, there are many cases where a neutral evaluator can establish a range of what could happen and also identify key variables. With that information, parties may be able to take a clearer eyed view of their case and decide not to waste available money on discover,e tc.. ENE can also be helpful where a party just has no realistic understanding of the upside or downside of the case and is either ignoring counsel’s advice or has been given an unduly rosy picture of the case by counsel.

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