Early Neutral Fact Finding

Used primarily when hotly contested threshold legal and/or factual issues have a significant impact on the litigation. For example, if there is a dispute concerning insurance coverage that will be an impediment to early ADR, an early neutral fact finder can provide a preliminary opinion on insurance coverage that will overcome the reluctance to engage in early ADR. Similarly, if there is a threshold issue as to code or contract violations in the construction setting, early neutral fact finding will often pave the way to a successful mediation. It has often been used in addressing and narrowing threshold class certification issues. The process has been a very useful tool in settings where the experience and insight of a recognized and mutually respected litigator in the particular field will provide focus and insight to the parties.

It is also very helpful when the threshold issue will involve significant discovery disputes. Often the expert, with the assistance of a neutral, will identify the information that is needed to engage in fact finding, and all parties are expected to produce the information requested by the expert that is necessary for the expert’s evaluation and analysis. The information can be provided confidentially for the expert’s eyes only which can significantly reduce, at least preliminarily, many discovery disputes.

Indications for consideration:

  • A preliminary threshold legal or factual issue exists that is an impediment to conducting early ADR

  • There is an available qualified expert in the field whose opinion will be respected by both parties
  • Addressing the threshold legal issues will involve potentially significant discovery disputes and motion practice
  • One or more of the parties fails to fully appreciate the risks involved in the litigation
  • One or more of the parties could benefit from an expert’s insights on the issues that will be significant in the ongoing litigation (thereby potentially streamlining and focusing the litigation and discovery plan)
  • One or more of the parties appear determined to “over-litigate” the case
  • One or more of the attorneys appears to need assistance in client control

Timing

As early as possible in the litigation.

A mutually respected subject matter expert voluntarily selected by the parties, typically with the assistance of an agreed upon neutral, implements agreed upon ground rules, the voluntary exchange of information, and the terms of the expert’s retention as agreed to by the parties including how the fact finder’s determination will be disclosed and used.