Early Neutral Evaluation (ENE), sometimes called “case evaluation,” is an informal, confidential process in which parties present disputed facts and legal issues to an experienced neutral. The neutral advises the parties on the strengths and weaknesses of their positions, predicts a likely outcome if the case were to go to trial, and/or estimates the value of the case. The evaluator’s opinions are confidential and advisory only.
The process can be designed to meet the parties’ particular needs. Typically, counsel are asked to provide written statements including factual details, as well as liability and damages analyses, including any anticipated legal and evidentiary disputes. The parties and their counsel would meet in joint and/or private caucus where the neutral would gather additional information for their evaluation. Once the information is gathered, the parties have the option to have the neutral mediate and try to resolve the case without any formal evaluation. If both sides do not agree to mediate at that point or if mediation is attempted but unsuccessful, the neutral would provide their evaluation. The evaluation can be oral and/or written and usually includes the neutral’s assessment of the relative strengths and weaknesses of the case, likely outcomes on significant legal issues including summary judgment, and a settlement value or range. As with mediation, the process is confidential. Sometimes parties will agree to conduct additional focused discovery and submit additional information to the neutral before the neutral completes their formal evaluation. Sometimes parties may ask to hold off on issuing the formal evaluation while they attempt to negotiate a settlement on their own.