This article proposes the preliminary judgment as a means for facilitating the settlement of legal disputes. A preliminary judgment is simply a tentative judicial assessment of the merits of a case or any part of a case, based on the same sorts of information that the courts already consider on motions for summary judgment. The difference between a preliminary judgment and a summary judgment is that the court, in a preliminary judgment, would not be limited to deciding issues with which no reasonable jury could disagree. Instead, the court would provide its own judgment on the merits of the case based on the information provided by the parties. A preliminary judgment, once given, would convert into a final judgment after the expiration of a reasonable period of time. However, the losing party would have the right to object prior the expiration of the period (with or without explanation), in which case the judgment would be vacated and the case would proceed according to ordinary rules of procedure. Preliminary judgments could increase prospects of success in settlement bargaining by providing litigants with a credible evaluation of case value -- offsetting settlement-defeating party optimism, anchoring the parties’ discussions on realistic outcomes, encouraging productive bargaining, focusing attention on basic strategic questions, counteracting the danger that attorneys will distort settlements, and enhancing the willingness of litigants to accept the outcome. Because preliminary judgments would be announced publicly, moreover, they would provide information to guide future conduct by third parties. In point of fact, judges already communicate their provisional views on the merits through a variety of pretrial procedures. The preliminary judgment would represent a more direct, honest and systematic approach to practices that until now have been employed in less transparent ways.
Date of Authorship for this Version
Miller, Geoffrey P., "Preliminary Judgments" (2008). New York University Law and Economics Working Papers. 138.