Early neutral evaluation (ENE) is a process in which parties obtain from an experienced neutral (an "evaluator") a nonbinding, reasoned, oral evaluation of their case on its merits. The Court appoints an evaluator who has expertise in the area of law in the case. After essential information and position statements are exchanged early in the pretrial period (usually within 150-200 days after a complaint has been filed), the evaluator convenes an ENE session which typically lasts about two hours. At the meeting, each side briefly presents the factual and legal bases of its position. The evaluator may ask questions and help the parties identify the main issues in dispute as well as areas of agreement. He or she may also help the parties explore options for settlement. If settlement does not occur, the evaluator then offers his or her opinion as to the settlement value of the case, including the likelibood of liability and the likely range of damages. With the benefit of this assessment, the parties are again encouraged to discuss settlement, with or without the evaluators assistance. They may also explore ways of narrowing the issues, exchanging information about the case or otherwise preparing efficiently for trial.
The evaluator has no power to impose a settlement or to dictate any agreement regarding the pre-trial management of the case. The ENE process, whether or not it results in settlement, is confidential.
A. Judges may designate cases for inclusion in the Early Neutral Evaluation (ENE) program with the consent of the parties. All cases so designated will be assigned to an evaluator. In the unlikely event that an appropriate evaluator is not available, the parties and the judge will be notified.
B. When a case is designated for ENE, the Circuit Executive shall provide counsel with copies of the judge's designation order, the Circuit Executive's notice of the appointment of the early neutral evaluator and a copy of the ENE program procedures.
A. In most cases, the ENE order shall be issued early enough in the pretrial period to allow the ENE session to be held within 150-200 days of the filing of the complaint.
B. When the Circuit Executive receives a copy of a judicial order designating a case for ENE, she will assign an evaluator with expertise in the subject matter of the lawsuit.
C. The evaluator will contact all attorneys and set the date and place of the evaluation session. Whenever possible, the ENE session shall be held within 150-200 days of the filing of the complaint and within 45 days of the date the Circuit Executive notifies counsel of the identity of the evaluator.
D. The Circuit Executive and evaluators shall schedule ENE proceedings in a manner that does not interfere in any way with the management of case processing and action by the referring judge. No party may avoid or postpone any obligation imposed by the referring judge on any ground related to the ENE program.
A. No later than 10 calendar days prior to the ENE session, each party shall submit directly to the evaluator, and shall serve on all other parties, a written evaluation statement not to exceed 10 pages (excluding exhibits and attachments). Such statements must: (1) identify person(s), in addition to counsel, who will attend the ENE session and who have decision-making authority; (2) address whether the case involves legal or factual issues the early resolution of which might reduce appreciably the scope of the dispute or contribute significantly to settlement negotiations; and (3) identify the discovery that will contribute most to meaningful settlement negotiations.
B. Parties may also identify persons whose presence at the ENE session might improve significantly the productivity of this session.
C. Parties shall attach to the evaluation statements copies of key documents out of which the suit arose (e.g., contracts) or materials that might advance the purposes of the ENE session (e.g., medical reports).
Written evaluation statements should NOT be filed with the Court, and the referring judge will not have access to them.
A. The Court requires parties to attend evaluation sessions. The main purposes of an ENE session are to give litigants the opportunity (1) to present their positions; (2) to hear their opponents' views of issues in dispute; and (3) to hear a neutral assessment of the strengths of each side's case.
B. When a party to a case is not a natural person (for example, a corporation), a person (other than the outside counsel) who has authority to enter stipulations and to bind the party in a settlement must attend.
C. In cases involving insurance carriers, company representatives with settlement authority shall attend.
D. When a party is a unit of government, an agency representative, as well as counsel from the U.S. Attorney's Office (or the D.C. Corporation Counsel's Office), must attend the ENE session.
E. An attorney for each party who has primary responsibility for handling the trial of the matter must attend the ENE session.
F. A party or attorney may be excused from attending an ENE session only after petitioning the referring judge in writing no fewer than 15 calendar days before the scheduled ENE session. Such a petition must show that attendance at the ENE session would impose an extraordinary or unjustifiable hardship.
A. The evaluator has broad discretion to structure the ENE session. He/she shall determine the time and place of the session and shall structure the session and any follow-up sessions. Rules of evidence shall not apply and there is no formal examination or cross-examination of witnesses.B. The evaluator shall:
- permit each party, or counsel, to make an oral presentation of its position;
- help parties identify areas of agreement and enter stipulations, wherever feasible;
- assess the relative strengths and weaknesses of the parties' positions and explain the reasons for the assessments;
- help parties explore settlement;
- estimate, where possible, the likelihood of liability and the range of damages;
- help parties develop an information-sharing or discovery plan to expedite settlement discussions or to position the case for disposition by other means; and
- determine what, if any, follow-up measures will contribute to case development or settlement (e.g., written reports, telephone reports, additional ENE sessions, mediation).
C. When an evaluator completes work on a case, he/she will, regardless of case outcome, submit an evaluator assessment form to the Circuit Executive.
A. All written and oral communications made in connection with or during any ENE session are confidential.B. No communication made in connection with or during any ENE session may be disclosed or used for any purpose in any pending or future proceeding in the U.S. District Court for the District of Columbia.
C. Privileged and confidential status is afforded all communications made in connection with ENE sessions, including matters emanating from parties and counsel as well as evaluators comments, assessments, and recommendations concerning case development, discovery and motions. Except for communication between the judge and the evaluator regarding noncompliance with program procedures (see VIII C below), there will be no communication between the Court and the evaluator regarding a case that has been designated for evaluation. The parties will be asked to sign an agreement of confidentiality at the beginning of the evaluation session.
D. Parties, counsel and evaluators may respond, in absolute confidentiality, to inquiries from authorized Court staff which are made for the purposes of program evaluation.
B. Evaluators may not determine the issues in a case or impose limits on pretrial activities.
C. Evaluators, and any party who has first discussed a problem with the evaluator without obtaining a satisfactory resolution of the matter, shall report to the D.C. Circuit's Dispute Resolution Director any instances of noncompliance with ENE procedures that, in their view, may disrupt the evaluation process or threaten the integrity of the ENE program. Such matters may, in the discretion of the Director, be reported to the ADR Compliance Judge for appropriate action.