Eastern District of California
IN BRIEF
Overview
Early neutral evaluation (ENE).
Based on a pilot program in early neutral evaluation, the Eastern District of California formally amended its local rules, effective December 19, 1994, to establish court-based procedures for voluntary referral of civil cases to a nonbinding neutral-evaluator. See below.
Early settlement conferences.
All district and magistrate judges are available to conduct settlement conferences as early as practicable in the case.
Of note
Information from court.
The court notifies plaintiffs of the early neutral evaluation program at filing. Plaintiffs must provide copies of the notice to all other parties involved in the action.
For more information
R. Lynette Groff, Sacramento Division, 916-498-5468
Marianne Matherly, Fresno Division, 209-487-5757
IN DEPTH
Early Neutral Evaluation in California Eastern
Overview
Description and authorization.
After several years of experimentation with ENE, the Eastern District of California amended Local Rule 252 on December 19, 1994, to establish a voluntary, nonbinding ENE program. Most civil case types are eligible, but participation requires party consent. An ENE evaluator is appointed to bring the parties in a civil action together in an informal setting and to offer impartial guidance by (1) allowing each party to state its position, (2) identifying areas of agreement and thereby narrowing the focus to issues of nonagreement, (3) assisting the parties in identifying the strengths and weaknesses of their positions, (4) planning discovery, (5) providing a realistic assessment of legal costs, and (6) effecting resolution of as many issues as possible before proceeding to trial. The neutral-evaluators serve without compensation.
Number of cases.
In early 1995, fifty-five cases were referred to the ENE process.
Case selection
Eligibility of cases.
Most civil cases are eligible for referral to ENE, except for the following: prisoner petitions; cases in which one of the parties is appearing pro se; voting rights cases; Social Security cases; deportation cases; Freedom of Information Act cases; and cases involving the constitutionality of federal, state, or local statutes or ordinances.
Referral method.
Parties voluntarily elect early neutral evaluation by filing a stipulation with the court indicating that all parties agree to proceed under Local Rule 252. When the stipulation is received, the court issues an order referring the case to ENE.
Opt-out or removal.
No procedure is necessary, as participation in ENE is strictly voluntary.
Scheduling
Referral.
At the initial status conference, the court informs all parties of the availability of ENE. Parties may then file a stipulation for early neutral evaluation.
Written submissions.
At least seven days before the evaluation session, each party must submit to the evaluator and all other parties a written evaluation statement of ten pages or less. The statement must (1) briefly list the facts and pertinent principles of law; (2) identify significant disputed issues; (3) identify issues whose early resolution may reduce the scope of the dispute or contribute significantly to the productivity of settlement discussions; and (4) identify the people, in addition to counsel, who will attend the session with decision-making authority. Documents or other physical evidence may also be identified or attached.
ENE session.
Unless the court directs otherwise, the first ENE session must be held as soon as possible after the evaluator is appointed and no more than ninety days after the appointment. The evaluator selects the location, date, and time for the initial session.
Number and length of sessions.
Most ENE actions are resolved at the initial session. The evaluator determines if follow-up sessions or procedures are needed.
Program features
Discovery and motions.
Typically, the ENE process is invoked before the start of discovery and motion practice.
Party roles and sanctions.
The attorney who will be primarily responsible for the trial must attend the ENE session. Parties or party representatives with settlement authority must also attend. If there is insurance coverage, an adjuster with reasonable settlement authority may attend. Governmental entities must be represented by an attorney with authority to settle or recommend settlement. Local Rule 252 does not specify whether or what type of sanctions may be imposed for failure to comply with the attendance and other requirements.
Outcome
. Within thirty days of the ENE session, the evaluator must report in writing to the ENE program administrator the outcome of the session and whether any follow-up sessions or procedures are still to be completed.
Confidentiality
. All written and oral communications made during any ENE session are confidential and are governed by Fed. R. Evid. 408.
Neutrals
Qualifications and training.
The clerk is responsible for maintaining a panel of qualified evaluators who are experienced civil litigators familiar with practice in federal court. The panel initially consisted of evaluators who were selected to participate in the ENE pilot project. The chief judge may select additional members who want to serve. Evaluators may ask to be dropped from the panel for a specified period of time or permanently.
Selection for case.
Once a stipulation for early neutral evaluation is filed, the court appoints an evaluator from a panel maintained by the clerk's office. All parties are notified of the appointment.
Disqualification.
No person may serve as an evaluator in any action where a conflict of interest exists or is believed to exist. If a party believes that an assigned evaluator has a conflict of interest and does not bring the concern to the attention of the clerk within ten days of learning of the conflict, the party waives any objection based on that conflict.
Immunity.
The court has not addressed this issue.
Fees.
Evaluators receive no compensation for their service.
Program administration
The clerk is responsible for administering the court's ENE program.
Excerpted from ADR and Settlement in the Federal District Courts: A Sourcebook for Judges & Lawyers, 1996, a publication of the Federal Judicial Center and CPR Institute for Dispute Resolution