Early Case Assessment Pilot Program U.S. Department of the Interior

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 maintained Possible 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 DOI Departmental 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

Early Case Assessment Pilot Program National Parks

Project Status January 2001:Needs Assessment Initiated February 2001:Needs Assessment Completed Report and Recommendations Submitted 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 Communication ECA Process Facilitates:  Coordination of activities of multiple parties  Inter-agency cooperation  Increased communication between groups and agencies  Identification 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 elements compiled & 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 Report completed within: Resolution strategy and/or dispute management plan discussed and implemented within 30 days of ECA report “Lessons Learned” conducted by responsible solicitor within 30 days of final disposition If matter not resolved, ECA Report 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 Civil Penalty: 60 days HCPs: 60 days NRDs: 150 days Torts: 90 days Land Issues: 90 days

Implementation Dispute Identification Matters Referred to the Pilot Program Contracts ESA Civil Penalty Habitat Conservation Plans Natural Resources Damages Land Use Issues Torts Any 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 – Through The 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

Questions and Comments National Parks