Early case assessment: decide in week one, not month six

Most commercial disputes are not won in court. They are won (or lost) as economic decisions: what to claim, what to concede, when to settle, and how much money and management attention to spend getting there. Those decisions carry the most value at the very beginning of a dispute, which is exactly when most parties have the least information. Early case assessment exists to fix that ordering: do the analysis first, while the decisions it informs are still open.

The alternative is familiar. Positions are taken in the first angry letters, proceedings are threatened or started, and the sober analysis of merits and economics arrives after the parties are invested (financially and emotionally) in paths they might never have chosen with clear eyes.

What week one should answer

An early case assessment is a structured answer to five questions. Merits: how strong is the claim or defence, on the law and on the record as it stands? Exposure: what is the realistic range of outcomes, including the bad end of it, in money and in consequences beyond money: business relationships, reputation, precedent for other contracts? Evidence: what does the record support, what is missing, and what does the other side likely hold? Cost: what will each phase cost, in fees and in your own people's time? And timing: where are the realistic windows to resolve this, and at what price?

None of these answers will be final in week one. They do not need to be. They need to be decision-grade: good enough to choose a direction deliberately rather than drift into one.

Merits and exposure come in ranges

An honest early assessment speaks in ranges and conditions, not verdicts. Counsel who announce in the first week that you will win are not assessing; they are selling. The useful form is conditional: this position is strong if the record shows X; the exposure narrows sharply if Y holds up. Where the honest answer is that it depends on facts not yet established, the assessment should say so plainly, and then name the facts, because that list is your evidence plan.

Ranges are not a hedge. They are what makes the assessment usable, because settlement decisions are comparisons between ranges: what a resolution costs now against what the litigated range costs later, discounted by uncertainty and burdened by everything below.

The cost curve bends early

Disputes do not cost evenly over time, and fees are the smallest part of the story. The larger costs are internal: executives preparing instead of selling, engineers reconstructing old projects, a financing or transaction complicated by disclosure of the dispute. Almost every decision that flattens this curve is an early one: the forum, the scope of what you claim, whether evidence is secured before it degrades, whether settlement is explored before positions are taken publicly.

The Swiss timetable reinforces this. Conciliation comes first for most claims (Art. 197 CPC), and the factual record largely closes after the second exchange (Art. 229 CPC). An assessment you have not done by then is one you will make later with worse information and fewer options.

By month six, those decisions have been made by default if not by design. The cost curve is what it is, and the remaining choices are between expensive options.

Settlement windows open early, and close

Disputes are easiest to resolve before proceedings begin, before principals' pride is engaged, and before each side has spent enough to need vindication. Later windows do open (after the first exchange of substantive positions, around key procedural moments) but each tends to open at a worse price than the one before, because sunk costs harden positions on both sides.

A party that has not assessed its case cannot use the early windows: it does not know what a good number is, so it cannot recognise one. That is how disputes settle in month six on terms that were available in week one, with the intervening costs paid by both sides for nothing.

Decide, then revisit deliberately

The output of an early case assessment is not a memo; it is a decision. Pursue, defend, settle within a defined range, or park: together with the thresholds that would reopen the question: a document that changes the merits, a procedural ruling, a shift in the counterparty's situation. Held this way, the assessment becomes a position management can actually govern by, rather than a mood that shifts with each letter from the other side.

The quality of week-one assessment depends on how fast you can command the record, and this is where the economics have changed: systems can read the full documentary record in days and surface what the case turns on, while a lawyer forms the view on merits and numbers, and answers for it. If a dispute is landing on your desk, the assessment is worth doing now; we are happy to do it with you.