A good case evaluation answers a deceptively simple question: if you spend the money, what do you actually get? Everything else—the elements, the damages model, the limitations clock, the collectibility memo, the decision tree—is just a structured way of refusing to answer that question by instinct. Instinct is how lawyers fall in love with bad cases and walk away from good ones. This checklist runs the assessment as a sequence of gates, in roughly the order a disciplined evaluator works them, stopping to reassess whenever a gate fails.

For the full narrative treatment with worked hypotheticals, see evaluating and assessing a civil case and its companion evaluating and assessing a civil lawsuit.

Phase 1: Conflicts and engagement

  • Run a conflicts check against the firm's client and adverse-party databases—including corporate affiliates, principals, and key witnesses—at intake, before you fall in love with the matter (Model Rules 1.7, 1.9).
  • Determine whether any conflict is waivable, and if so obtain informed, written consent.
  • Paper the engagement: define who the client is (and who it is not), the scope, the allocation of duties, and fees in writing.
  • For contingency or fee-shifting matters, confirm written fee terms as required (Model Rule 1.5(c)).

Why this comes first. Conflicts can be dispositive, and the analysis gets harder to do honestly once you have invested in the matter. A missed conflict can produce disqualification mid-case, fee disgorgement, and a bar complaint. Defining the client precisely controls the conflicts, privilege, and "whom can I bill" analyses.

Phase 2: Preserve the evidence

  • Issue a written litigation hold the moment litigation is reasonably anticipated—often before the assessment is complete.
  • Identify custodians and data sources; suspend routine deletion and document-destruction policies.
  • Notify former employees and third parties under the client's control of the preservation obligation.
  • Track the hold: who was notified, what was preserved, and when.

Why preservation cannot wait. A spoliation problem can transform a winnable case into a losing one regardless of the merits. Fed. R. Civ. P. 37(e) authorizes curative measures and, where a party acted with intent to deprive, severe sanctions up to an adverse-inference instruction or dismissal. This is the one part of evaluation you do first and ask questions about later. See Rule 26 initial disclosures and discovery planning checklist.

Phase 3: Elements, burden, liability, and damages

  • Write out the elements of each claim, counterclaim, and defense from the controlling statute, pattern jury instructions, and verdict form.
  • Build a proof matrix: for each element, the witness, the documentary support, and the anticipated evidentiary hurdles and your answers.
  • Identify the standard of proof for each claim—preponderance, or the higher clear-and-convincing bar for fraud, punitive damages, willfulness, etc.
  • Score liability and damages as separate probabilities/values; remember they multiply, not add.
  • For each damages category (compensatory, consequential, statutory, punitive), ask: is it available at law, provable on this evidence, and capped?
  • Check constitutional ceilings on punitive damages (State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)).

Why and the trap. Empty cells in the proof matrix are where cases are lost—it is easy to say the defendant breached; it is harder to fill in which witness with personal knowledge will say so and which exhibit proves it over a hearsay objection. Collapsing liability and damages into a single gut sense of "strong" or "weak" systematically misprices cases: a 90%-liability case worth $20,000 is small; a 30%-liability case worth $10 million is large and risky.

Phase 4: Collectibility

  • Identify whether the defendant has assets within reach of the forum.
  • Identify applicable insurance coverage and policy limits—often the practical ceiling on recovery.
  • Assess exemptions (individual wages and home), thin capitalization, and senior creditors or security interests.
  • Assess the risk of bankruptcy, which would convert your judgment into an unsecured claim worth pennies.
  • For corporate defendants, evaluate asset structure (holding vs. operating entities) and veil-piercing difficulty.

Why this is the most overlooked gate. A judgment is a piece of paper authorizing you to try to take the defendant's assets; if there are none, the paper is decoration. Collectibility is also a bargaining chip for whoever holds the better facts—a judgment-proof defendant uses that fact as settlement leverage. See corporate structuring and running multiple businesses and offshore vs. domestic asset protection.

Phase 5: Threshold defenses

  • Calculate the correct statute of limitations for each claim—a single fact pattern can support claims with different clocks.
  • Price accrual (the discovery rule) and tolling (fraudulent concealment, minority/incapacity, tolling agreements).
  • Check for a contractual limitations clause shortening the period.
  • Confirm subject-matter jurisdiction (federal question, 28 U.S.C. § 1331; diversity plus >$75,000, § 1332).
  • Confirm personal jurisdiction (general "at home," Daimler AG v. Bauman; specific, Ford Motor Co. v. Montana Eighth Judicial Dist. Court).
  • Confirm proper venue (28 U.S.C. § 1391) and assess transfer risk (§ 1404(a)).

Why screen these first. A meritorious claim filed one day late is worth nothing. The statute of limitations is the most efficient case-killer in the catalog, and subject-matter jurisdiction cannot be waived—a case can be dismissed years in. Where a foreign defendant must be served abroad, service can become a strategy unto itself; see serving a foreign defendant under the Hague Convention checklist.

Phase 6: Economics—budget and fee structure

  • Choose the fee structure (billable hour, contingency, or an alternative fee arrangement) and note how it allocates risk.
  • Build a stage-by-stage budget: investigation, pleadings, fact discovery, expert discovery, class certification (if any), summary judgment, pretrial, trial, post-trial, appeal.
  • Add the non-attorney costs clients underestimate: experts, e-discovery vendors, jury consultants, mediators, settlement administrators.
  • Treat the budget as the denominator in every expected-value calculation, and revisit it at each decision point.

Why. A strategy you cannot afford is not a strategy. Litigation costs are lumpy and back-loaded—discovery and trial dwarf the pleadings—and in many modern cases document review and e-discovery are the single largest line item. The right question is never "what has this cost so far?" but "what will the rest cost, and is the remaining upside worth it?"

Phase 7: Decision tree, expected value, and the settlement range

  • Assign explicit probabilities to each node (motion to dismiss, summary judgment, trial win/lose, damages high/mid/low).
  • Compute expected value: sum each outcome times its probability, then subtract costs and discount for collectibility and time value.
  • Derive each side's expected value to locate the zone of possible agreement—the settlement range where both sides beat trial.
  • Calibrate probabilities against base rates and a skeptical colleague; lawyers are chronically overconfident about their own motions.
  • Adjust for risk tolerance and intangibles: reputational stakes, precedent, the value of certainty and closure.

Why turn it into a number. A case is not worth its best-case verdict; it is worth the probability-weighted average of all outcomes, minus the cost of getting there. The decision tree is a machine for finding the zone of possible agreement, and the discipline of assigning explicit probabilities converts "I feel good about summary judgment" into "I'd put it at 40%"—a number a client can weigh and you can revisit. When the numbers point toward resolution, translate the analysis into leverage with a well-built demand; see drafting a demand letter checklist.

Common mistakes

  • Skipping collectibility. Winning at trial and then discovering the defendant was insolvent the whole time.
  • Collapsing liability and damages. They multiply; keep them on separate axes until the final EV calculation.
  • Missing a shortened contractual limitations clause. Read the limitations clause before you read the breach.
  • Falling in love before clearing conflicts. Run the check at intake, not after the complaint is drafted.
  • Treating the budget as a one-time document. Revisit it at every decision point.
  • False precision vs. no estimate. An honestly wrong probability you can revisit beats a confident feeling you cannot examine.
  • Waiting to be served to preserve. The duty attaches earlier; a Rule 37(e) problem can be unfixable.

Primary authority

  • Model Rules of Professional Conduct 1.5(c), 1.7, 1.9 — fee writing; conflicts (current and former clients).
  • Fed. R. Civ. P. 37(e) — spoliation of ESI; duty to preserve when litigation is reasonably anticipated.
  • 28 U.S.C. §§ 1331, 1332, 1391, 1404(a) — subject-matter jurisdiction, diversity, venue, transfer.
  • UCC § 2-725 — four-year limitations for sale-of-goods; jurisdictional limitations periods vary by claim.
  • Key cases: International Shoe Co. v. Washington, 326 U.S. 310 (1945); Daimler AG v. Bauman, 571 U.S. 117 (2014); Ford Motor Co. v. Montana Eighth Judicial Dist. Court, 592 U.S. 351 (2021); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).

Related resources

This checklist is for general informational purposes only, is not legal advice, and does not create an attorney-client relationship. Statutes of limitations, jurisdictional rules, damages caps, and ethics rules vary by jurisdiction and change over time; consult qualified counsel about your specific situation.