What is Neutral Evaluation (NE)?
Neutral Evaluation (NE) is a process that lets each side present written and oral summaries of its case to a “neutral” person, called an “evaluator.”
NE is different from mediation. In NE, lawyers and their clients get to hear independent feedback on the strengths and weaknesses of their case. This helps the parties have a more realistic assessment of the potential outcome of their case if it goes to trial.
What kinds of cases are suited for NE?
Neutral evaluation is a good choice when:
- There are technical or scientific questions to be worked out, like in medical malpractice cases, copyright or trademark cases, or a statute of limitations issue that could be the key factor in deciding if the case will go forward or not
- Lawyers want an independent opinion about a case
- A party or lawyer has an unrealistic view of the dispute
- Clients feel alienated from the formal litigation process
- The lawyers are not communicating well with one another
- Clients want an independent opinion of their own lawyer’s judgment about a case clients and lawyers are reluctant to be the first ones to raise the issue of settlement
What kinds of cases my not be well-suited for NE?
Neutral evaluation is only for people with lawyers; NE may not be a good idea if:
- It is too soon to tell what the case is worth.
- The lawyers have an efficient discovery plan.
- The lawyers have a lot of experience in this type of case and have a good sense of what the case is worth.
- The case does not involve complicated issues and does not involve technical or scientific questions.
- The dispute does not involve money (like a neighbor playing music too loud). This type of case might be better for mediation.
Do I have to pay to use NE?
Yes. You and the other parties will pay the evaluator directly. The list of panelists gives the hourly fees for each provider.
If you don’t have enough money to pay the fees, ask the court ADR Coordinator if you can fill out a financial aid application.
If we use NE, do we still have to go to the Case Management Conference?
If you decide to go to NE and you file a Stipulation and Order To ADR at least 10 days before your first case management conference, the court will automatically postpone (continue) your first case management conference 90 days.
The court Clerk’s Office will send you a notice with your new conference date. The 90 days will give you time to resolve your case using NE.
How do we start NE?
If you and the other parties decide to use NE, you have 21 days after the case management conference to fill out and file a Stipulation and Order to ADR. This form lets the court and the ADR Office know the name of the evaluator you selected and the date of the NE session.
If you change the date of the NE session from what is listed on the Stipulation and Order to ADR, you must notify the court ADR office of the new date. You can notify the ADR office in writing.
How do we select an evaluator?
You can choose an evaluator from the court ADR Panelist List. Or, if you prefer, you and the other parties can agree on your own evaluator.
What are the qualifications of the evaluator?
The evaluator is either a lawyer or a retired judge with expertise in the area of law your dispute involves. All evaluators have at last 10 years of legal experience and have received Neutral Evaluation Training.
You can ask the evaluators for references and more information about their qualifications.
How do we prepare for NE?
Shortly after you select your evaluator and file the Stipulation and Order to ADR with the court, the evaluator will phone you and the other parties. At that time, the evaluator will:
- Discuss the procedures you will follow.
- Have all parties sign a Confidentiality Agreement.
- Determine who will be present at the session.
- Set deadlines for your case
Do I have to give any information to the evaluator before the first session?
Yes. You must submit your written NE statement to the evaluator up to 5 court days before the first NE session. You must also serve a copy of this statement on the other parties. You may contact the ADR coordinator for a copy of the NE guidelines outlined below or click on the link Neutral Evaluation Guidelines.
Your NE statement can be in pleading, letter or outline format and must:
- Identify name, title and status of your case.
- List the people with decision-making authority, who will attend the NE session.
- List the lawyers who will attend the NE sessions and the parties they represent.
- List any people connected to the case whose participation may make the NE session more productive and improve the chances of settlement (for example, insurance representatives).
You must also:
- Provide a brief statement of the facts of the case.
- State what each plaintiff must prove to win and how the plaintiff intends to do so.
- State what each defendant must prove to win and how the defendant intends to do so.
- State types of damages claimed and how much money is being asked for.
- State your opinion as to the highest and lowest possible damages that a court may find, and why.
- Describe any unusual issues that may affect the case, like discovery or evidentiary problems, related claims, third party liens, etc.
- State any legal or factual issues that if resolved early on, would reduce the scope of the dispute.
- Include copies of documents you believe the neutral evaluator should consider. Highlight the areas that you believe may advance the NE session (e.g. contracts out of which the actions arose, accident reports, medical reports, invoices evidencing special damages, etc.)
Do I File the NE statement with the court?
What will the evaluator do?
The evaluator will read and listen to summaries of the case from all parties. The evaluator may also ask the parties and their lawyers about their case. Then, the evaluator will give an opinion on the strengths and weaknesses of each party’s evidence and arguments and make a “non-binding” evaluation of your case. “Non-binding” means you can accept or reject the evaluation.
What if we do not accept the evaluator’s evaluation?
If you do not accept the evaluation and all parties agree, the evaluator can still try to help you settle your case. For example, the evaluator can point out areas of agreement and make suggestions to help resolve your case.
Who should go the NE session?
- All parties and their lawyers.
- Government agencies, corporations or associations must send a lawyer and a representative with authority to settle and someone who is knowledgeable about the facts of the case.
- If the government agency is acting on behalf of one or more individuals, at least one of those individuals must attend.
What happens at the NE session?
The evaluator will:
- Allow each party to present orally or in writing its claims or defenses and the evidence on which they are based.
- Help the parties identify areas of agreement. If the parties find areas where they agree, they can enter into an agreement or “stipulation” that resolves some or all issues in the dispute.
- Assess the relative strengths and weaknesses of the parties’ contentions and evidence.
- Explain the reasoning that supports these assessments.
- Estimate the likelihood of liability and the dollar range of damages.
- Help the parties assess litigation costs realistically.
The evaluator will present a written evaluation, unless all parties expressly request otherwise. After the parties receive the evaluation, the evaluator may, if all parties request it:
- Explore the possibility of settling the case.
- Develop a case management plan.
- Devise a plan for sharing important information and/or conducting key discovery to expedite settlement discussions or to prepare the case for disposition by other means.
- Recommend additional sessions that may result in settlement.
Are there special rules or procedures at the NE sessions?
The parties must follow these Neutral Evaluation Guidelines. But, the NE sessions are usually informal. Check with your neutral evaluator on how he/she conducts neutral evaluation sessions. Normally, rules of evidence do not apply and there is no formal examination or cross-examination of witnesses.
Can the parties agree to resolve all or some aspects of the case during the NE process?
The evaluator will present his/her evaluation of the case. If all parties agree, they can ask the neutral evaluator to hold off on presenting the evaluation. Often when parties have heard each side’s case, they may want to discuss a possible settlement of their case.
But, if any of the parties wants to know the neutral evaluator’s opinion of the merits of each side’s case, the neutral evaluator will provide his/her analysis.
Are the sessions confidential?
Yes. All parties must sign a Confidentiality Agreement provided by the ADR neutral.
Am I allowed to communicate with the evaluator privately?
Once the parties have agreed on an evaluator, there can be no private (ex parte) communication between the parties or their lawyers and the evaluator. This means you can only talk to the evaluator when all other parties are present.
The only exceptions are:
- Scheduling appointments
- If all parties agree in writing to allow private communication, or
- If the evaluator has completed the evaluation.
Can the parties agree to resolve all or some aspects of the case during the NE process?
Yes. The parties are free to enter into written agreements that resolve some or all aspects of the case. They can also enter and file procedural or factual stipulations made in connection with an NE session.
Do the parties have to do anything after the NE session?
Yes. The parties, the lawyers and the neutral evaluator must fill out evaluation forms and submit the forms to the court ADR office within 10 days of the final NE session. There are separate evaluation forms for the Client Evaluation and Attorney Evaluation.
What happens if we cannot resolve our case with NE?
If the neutral evaluation does not resolve your dispute, you can try another form of ADR or you can go to trial.