Early Neutral Evaluation: Flawed Foundations in Statistical Predictions

By Jacqueline Kitzes

Early Neutral Evaluation (ENE) is a form of Alternative Dispute Resolution (ADR) designed to help parties resolve disputes more efficiently.[1]  It is an increasingly popular method encouraged by courts and private providers alike.[2]  ENE involves a neutral third party, often an experienced attorney or retired judge, who assesses the strengths and weaknesses of each party’s case early in the dispute.[3]  The primary goal is to encourage parties to focus on the strengths and weaknesses of their cases and their opponent’s early in the litigation process, potentially avoiding unnecessary pre-trial expenses.[4]  ENE aims to facilitate a more informed negotiation process and expedite resolution before escalation to trial.  It can serve as a cost-effective substitute for formal discovery and pre-trial motions.[5]  The process can act as a “reality check” for clients and lawyers, especially when they are far apart on the merits or value of the case.[6]  While settlement isn't the main goal, ENE can lead to settlement.[7]

ENE is a flexible process that can be initiated at various stages of a dispute[8]  When selecting an evaluator parties agree on a neutral evaluator with expertise relevant to the case.[9]  When participating in ENE through the court, the court’s ADR staff may appoint an evaluator with expertise in the substantive legal area of the lawsuit.[10]  Dispute resolution services can also help facilitate the identification and selection of an evaluator.[11]  At the beginning of the ENE process, each party submits a written statement outlining their position, key facts, and relevant evidence to help the evaluator understand the issues.[12]  These statements are exchanged and submitted to the evaluator before the ENE session but are not filed with the court.[13]  Then a confidential session is held where each party presents their arguments and evidence.[14]  This presentation can involve counsel, clients, or witnesses presenting evidence and arguments without regard to the rules of evidence and without direct or cross-examination of witnesses.[15]  The evaluator may ask questions to clarify points.[16]

The evaluator provides an assessment, including an opinion on the likely outcome if the case goes to trial.[17]  This includes an estimate of the likelihood of liability, the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party’s case with reasoning to support the assessments.[18]  This process and the outcomes it produces are inherently flawed.

ENE relies on historical court data to estimate likely case outcomes and guide settlement decisions.  However, as more cases are resolved through ENE, only the most complex or contentious cases proceed to trial, leading to a skewed dataset that no longer accurately represents the full spectrum of disputes.  This selective filtering introduces significant bias: the court outcomes that remain are unrepresentative of what might have been achieved if all cases were litigated.  Consequently, ENE’s reliance on these distorted statistics undermines its predictive accuracy and effectiveness, rendering its statistical foundation inherently flawed.

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[1] Author’s note: “efficiently” is used to denote the process’s faster and more cost-effective approach.

[2] Early Neutral Evaluation, Ashurst (Jun. 19, 2019), https://www.ashurst.com/en/insights/quickguide-early-neutral-evaluation/ [https://perma.cc/TY4V-T4G4].

[3] Christy Brown, Early Neutral Evaluation, Brown L. PLLC (Jan. 5, 2025), https://brownfirm.law/glossary/early-neutral-evaluation/ [https://perma.cc/X6WG-UY92].

[4] Early Neutral Evaluation, JAMS, https://jamsdenver.com/early-neutral-evaluation/ [https://perma.cc/YY8L-MRZ6] (last visited Feb. 16, 2025).

[5] Early Neutral Evaluation, supra note 2.

[6] Early Neutral Evaluation (ENE), United States District Court Northern District of California (last visited Feb. 16, 2025), https://cand.uscourts.gov/about/court-programs/alternative-dispute-resolution-adr/early-neutral-evaluation-ene/ [https://perma.cc/MT6K-GMSY].

[7] Id.

[8] Early Neutral Evaluation, supra note 2.

[9] Brown, supra note 3.

[10] Early Neutral Evaluation (ENE), supra note 6.

[11] Business & Taxation, Early Neutral Evaluation, Saalfeld Griggs PC (Apr. 5, 2017), https://sglaw.com/blog/early-neutral-evaluation/ [https://perma.cc/7KK4-8JPK].

[12] Brown, supra note 3.

[13] Early Neutral Evaluation (ENE), supra note 6.

[14] Brown, supra note 3.

[15] Early Neutral Evaluation (ENE), supra note 6.

[16] Id.

[17] Brown, supra note 3.

[18] Early Neutral Evaluation (ENE), supra note 6.