Tuesday, June 17, 2008

Miller on Preliminary Judgments

Geoffrey Miller (NYU) just posted an article called "Preliminary Judgments" on bepress.  Here is the abstract:

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 would increase prospects of success in settlement bargaining by providing litigants with a credible evaluation of case value. Preliminary judgments could offset settlement-defeating party optimism, anchor the parties’ discussions on realistic outcomes, focus attention on basic strategic questions, counteract the danger that attorneys will distort settlements, and enhance the willingness of litigants to accept the outcome. Because preliminary judgments would be announced publicly, moreover, they would provide information to guide future conduct. 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 which until now have been employed in less transparent ways.

Miller often has interesting, creative proposals and this is certainly one of them. That's why I always enjoy reading his work. I'm going to think more about it, but my first reaction is that there is no existing problem with the current system that this particular procedure is needed to solve.  There are several reasons why we might not want more preliminary decisions in cases.  One is that if there are some good reasons to have a jury trial to determine a cases' value (I explain these in my article on Bellwether Trials).  Judges already have ways to take causation determinations away from the jury if they want to, and whether that is a good or a bad thing is the subject for a serious policy debate.  And it is not clear to me that a mini-trial the result of which can be accepted or rejected at the litigant's discretion will really make the process more efficient than it is today.  On the other hand, once the judge has decided on an outcome or number through a formal process, how open-minded is that judge going to be going forward? The bottom line, why not just have a full blown, binding trial instead? 



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