A PRELIMINARY LEGAL OPINION-A NEW PROCEDURE TO MAKE CIVIL LITIGATION MORE EFFICIENT

• Published in: The Review of litigation Vol. 41; no. 1; pp. 1 - 32
• Main Authors: Rawicki, Bennett, Morgan, Ashbey, Scorcio, Matt
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01.01.2021
• Subjects: Attorneys; Certification; Disputes; Federal Rules of Civil Procedure; Judges & magistrates; Law; Litigation; State court decisions; Workloads
• ISSN: 0734-4015

Courts already make statements about legal issues that are subject to reconsideration and adjustment in opinions on many types of motions, such as motions for preliminary injunction, motions to dismiss, motions to compel discovery, motions for class certification, and motions for summary judgment.7 Similar procedures to the preliminary legal opinion already exist in the claim-construction procedure and the procedure for certifying questions to state supreme courts.8 In fact, the procedure for certifying questions to state supreme courts originally faced many of the same concerns facing the preliminary legal opinion, but now that procedure is widespread and receives praise from judges and commentators.9 The preliminary legal opinion can achieve that success too because there also is a need for it. [...]Part V addresses potential concerns about the preliminary legal opinion. Litigants feel obliged to seek fact and expert discovery to cover whatever the legal standard might end up being-from as favorable as possible for them to as detrimental as the opposing party could possibly argue.10 For example, if a defendant asserts a defense that the plaintiff believes is inapplicable as a matter of law, the plaintiff still will feel obliged to undertake discovery to disprove the defense as matter of fact, spending time and money on document collection, depositions, expert witnesses, and briefing. Co. (N.D. Cal. 2012): In this patent infringement case, Samsung proffered a damages expert, Dr. Wagner, who based his calculation of damages on an apportionment of the profits related to the allegedly infringed patent, rather than total profits.11 Apple argued that the relevant law did not allow such apportionment.12 The court agreed, excluding the expert testimony on the ground that it was contrary to law and thus unreliable and unduly prejudicial.13 The court also excluded the expert's opinion about the demand for the allegedly infringing features of the product because the court determined that the legal