Well over 90% of cases settle, many on the courthouse steps, some while the jury deliberates, and others, post-verdict while the case is on appeal. Too bad the court system does not permit a “dual track” scenario where the parties settle the case, but also, just out of curiosity, the court decides a pending motion, the outcome of a pending appeal, or a jury deliberates notwithstanding the settlement. Judicial economy would of course be ill-served by what would amount to “advisory opinions” or “mock trials” and also such “dual tracks” would definitely be a recipe for buyers’ remorse (and, consequently, some percentage of attempts to undo settlements).
From time to time, however, situations like this do arise. For example, in a recent case before the U.S. District Court, D. Minn., the parties settled the case while an appeal was pending but, as the logistics of settlement were finalized apparently, the Federal Circuit reversed the District Court. In this case, it does not appear that the settlement was “blown up” but, on the other hand, the Court is in the interesting position of asking the Federal Circuit to delay deadlines for a petition for rehearing on the appellate decision pending finalization of the settlement of the underlying case.
Imation Philips U.S. District Court Judge Frank (D. Minn.) Ltr to Fed Circuit