Also known as: preliminaries · prelim
Written by attorneys — see sources below.
A preparatory stage, determination, or communication that precedes the principal legal action, instrument, or ruling.
Paula Pierce agreed with an associate to rob a bank but never entered the building. When the associate completed the robbery alone, the prosecutor charged only the completed felony. The preliminary agreement merged into the principal offense and could not support a separate misdemeanor conviction.
Pierce Patterson sent Progressive Healthcare a letter outlining delivery schedules and pricing. The parties later signed a formal supply contract that incorporated those terms by reference. When a dispute arose over late shipments, the court treated the earlier letter as part of the binding agreement.
Priya Prasad moved for a preliminary injunction to halt construction on adjacent land. The court refused to issue the order because Paragon Construction had received no notice of the motion. Without notice the injunction could not issue even though irreparable harm was alleged.
Pamela Phillips faced trial for arson. The government offered evidence of an earlier warehouse fire. The court admitted the evidence after finding sufficient proof that Phillips had committed the prior act and that its probative value on intent outweighed unfair prejudice.
Portia Price offered a recorded conversation at trial. The defense objected on privilege grounds. The court conducted a hearing outside the jury's presence, decided the privilege did not apply, and admitted the recording without being bound by the rules of evidence on that threshold issue.
Phuong Pham sought dissolution of a limited partnership and requested a preliminary injunction to freeze partnership assets. The court granted the injunction after finding the statutory criteria for extraordinary relief were satisfied pending final resolution of the dissolution claim.
The Sixth Amendment right to counsel attaches at the initiation of formal adversary proceedings, which includes an initial appearance or arraignment on an information. Once attached, the right extends to the preliminary hearing as a critical stage where substantial rights may be affected.
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Under Rule 104(a) the court decides preliminary questions concerning qualification, privilege, or admissibility. The court is not bound by the rules of evidence except those on privilege and applies a preponderance standard in both civil and criminal cases.
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A communication that is not itself an offer may still contain promises or representations that are incorporated into a subsequent offer and become part of the contract upon acceptance. The preliminary communication can also satisfy the statute of frauds or form part of an integrated agreement.
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A preliminary injunction may issue only after notice to the adverse party. Issuance without notice violates the rule even if the movant demonstrates irreparable harm and likelihood of success on the merits.
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…note 6; Note, Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 Harv. L. Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa. L. Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co. , 43 F.2d 953, 956-57,…