Early Neutral Evaluation (ENE) Conferences in Federal Court
A brief explanation of the requirement, and some helpful tips on how to prepare for a productive ENE Conference.
A. What is an ENE Conference?An Early Neutral Evaluation Conference (commonly referred to as an "ENE") is a meeting between the parties and Judge, typically held in a less formal setting like the Judge's chambers. The purpose of the ENE is to have an in-depth discussion of every aspect of the lawsuit in an effort to achieve an early resolution of the case. The local rules will generally set the requirements as to when the Court must hold the ENE. For example, Local Rule 16.1(c) for California's Southern District holds that the ENE must be held within 45 days of the filing of an answer.
B. Attendance and Scheduling: Not like your typical hearing...The "who" and "when" requirements of your ENE should be given early attention. Judges will typically require that ALL parties, not just counsel, personally attend the Conference, regardless of perceived inconvenience. You should find out sooner, rather than later, whether the required parties can personally attend the ENE on the scheduled date, as Judges tend to be very reluctant to reschedule this Conference. Most judges in the Southern District require joint motions to reschedule, well in-advance of the ENE, based only on "extraordinary circumstances."
C. The ENE StatementThe Court will issue an order scheduling the ENE, as well as setting forth any requirements for the submission of "ENE Statements" by the parties. Submitted confidentially and in advance of the Conference, the ENE Statement is the first real opportunity (as opposed to generic pleadings) to present your claims, defenses, and settlement positions (if any) to the Judge. Do NOT simply regurgitate facts or law contained in the Complaint or Answer. Try to focus on the issues most pertinent to settling the matter.
D. BE PREPAREDClients and their counsel should anticipate being openly challenged by the Judge on their version of the facts and the weaknesses in their legal positions. Clients and their counsel should speak candidly about the client's "bottom line" beforehand to ensure that the attorney and client are on the same page for purposes of potential settlement at the ENE. While each Judge has his/her own style, most will have the parties break into separate rooms, which helps to remove any emotional element between the parties that may hinder resolution of the matter. If no settlement can be reached, the Judge will simply set future dates for your case and dismiss the parties. Full, open, and honest dialogue between attorneys and their clients prior to the ENE regarding the client's goals and settlement positions will help to ensure a productive ENE Conference.