This episode is a lecture tutorial that offers an overview of the doctrines of claim preclusion and issue preclusion. These doctrines are also know as res judicata and collateral estoppel, respectively. (Confusingly,) These doctrines are also sometimes jointly referred to as "res judicata."
This episode is a lecture tutorial that offers an overview of the doctrines of claim preclusion and issue preclusion. These doctrines are also know as res judicata and collateral estoppel, respectively. (Confusingly,) These doctrines are also sometimes jointly referred to as "res judicata."
The civil procedure, it's cast. I am your host Thomas Maine. And
Speaker 2:This episode is about claim preclusion and issue preclusion doctrines that are sometimes jointly referred to as the doctrine of rest judicata, which is Latin for the thing as adjudicated, you should be thinking about these doctrines on an exam or in practice when you are made aware of earlier litigation involving one or both of the parties that are present in your instant suit. So imagine yourself in some suit, number two, involving one or both of the parties who you now see were also involved in some earlier suit. Number one, let's start with claim preclusion claim preclusion usually shows up as an affirmative defense and some defendant
Speaker 1:Is asserting that this claim, this thing has been adjudicated.
Speaker 2:This affirmative defense of claim. Preclusion has three elements, a three part conjunctivitis test element. Number one of claim preclusion is that the earlier suit, the suit, number one, that suit number one must have reached a final judgment on the merits. If suit number one isn't even completed all, then it hasn't reached a final judgment. And this doctrine is irrelevant. If suit number one is over. I, okay. I see that in a fact pattern suit, number one is complete. Well, then you need to make sure that suit number one ended with a final judgment on the merits. Merits refers to the strength of the actual claim. Did the breach of contract occur? Was there medical malpractice? Was there a violation of somebody's civil rights, the merits of the underlying substantive claim accordingly the many technical dismissals that we've learned in this course, wouldn't be on the merits. So when a court dismisses, for lack of subject matter jurisdiction, you're just in the wrong court. We're not saying that your claim is invalid. You just can't bring it here. Ditto for personal jurisdiction, venue service, even a dismissal on a 12 B6 without prejudice would not be an adjudication on the merits. Such dispositions are not efforts by courts to address or resolve the merits of the underlying claim. But on the other hand, a 12 B6 with prejudice, a summary judgment, a verdict at trial viz our determination about the merits of suit number one. And that's what it looks like when you're given a final judgment on the merits. There is some gray area about what is, and isn't on the merits. The gray area include suit number ones that end because of the plaintiff's failure to diligently pursue the claim or where the court entered judgment as a sanction most but not all courts would treat these as adjudications on the merits. Yeah. As well. So if, and only if suit number one reached a final judgment on the merits, then you're on to element two in order to do a study publish element. Number two, you need to demonstrate that suit. Number two do is the same claim as that earlier suit. Number one. Now the word claim can be a little tricky here, and it has meant different things historically, but today in most courts, it means does suit number two arise out of the same transaction or occurrence that gave rise to suit. Number one, that's a standard we've seen in so many different contexts and procedure joinder of parties, counterclaims, supplemental jurisdiction, same transaction or occurrence is an old friend. And the tools that you've used in those other contexts can be deployed here. So if the transaction or occurrence in suit, number one was an automobile accident that gave rise to a, a property damage claim by plaintiff against defendant. Well then suit number two, buy that same plaintiff against that same defendant, but this time for personal injury damages, well, that's a claim that arises out of the same transaction or occurrence as suit number one. And now imagine instead that suit number one was a claim by a company against a competitor for infringement of intellectual property. Right? Right. Well, a subsequent suit number two would arrive he's out of the same transaction or occurrence. If it, again, involved the actions that gave rise to the earlier suit. Number one. So suit number one and suit number two claims can arise out of the same transaction or occurrence. Even if suit number two brings different, better causes of action. Historically, this wasn't always the case, but today claim is more broadly than just cause of action. Also suit number one and suit. Number two claims arise out of the same transaction or occurrence. Even if the plaintiff found a better lawyer and better causes of action and better evidence for its suit. Number two, in this sense, it is not only what plaintiff actions did litigate in suit number one, but rather the scope of the claim that they asserted. And now with the benefit of hindsight, what they should have litigated now be careful not to be thinking of this in terms of what the plaintiff could have litigated, because remember they could have litigated anything rule 18, our joinder of claims rule. Well that doesn't impose any constraint at all. So that's not the test. It's not what the plaintiff could have litigated. Instead we are looking at the transaction or occurrence or series that precipitated that earlier suit number one, and asking, well, what's the parameters of that particular claim. It's everything within that scope that the plaintiff should have litigated in that earlier suit. Number one now just like we can fight over whether something is or isn't the same transaction or occurrence in those other contexts. Of course, there are a lot of good fights to be had here in this context to maybe the company who brings an intellectual property infringement action in suit. Number one alleges later in a subsequent suit, number two fraud, but the complaint in suit, number two may not mention the intellectual property infringement fact, maybe the acts that form the base basis for the lawsuit in suit. Number two, maybe they don't even overlap chronologically with the conduct that was complained about in suit. Number one, who it sounds like we have a fight on our hands analyze proximity of time, proximity of space, relatedness in origin or motivation. The judge in suit. Number two, we'll need to determine whether the claim in suit number two is, or isn't the same claim that the plaintiff already litigated. It might help you to hear the term claim splitting. We don't allow a plaintiff to split their claims between a suit number one and a subsequent suit. Number two, that metaphor might help you see how one transaction or occurrence has been improperly divided or fragmented or that metaphor might instead help you frame. How, in fact, there isn't any splitting going on here. These really are, and we're two separate happenings. That's our second element, same claim. If, and only if the second element is satisfied, then it's onto the third, which requires that you have the same parties from suit. Number one in this subsequent suit. Number two, or if not the same parties, parties who are in privity with the parties from suit number one, here's where we need to remember that preclusion law is not some roving vigilante doctrine that demands efficient litigation. Imagine this hypothetical plaintiff is injured in a three car accident. She sues one of the other drivers in suit. Number one. Now, if she later tries to Sue the other driver in a suit, number two, this suit number two is not barred by the doctrine of claim preclusion. It's not suit. Number one might well have ended in a final judgment on the merits. And you might imagine that plaintiff won or lost suit. Number one. It doesn't even matter which, but if that happened well, then you could say element number one of claim. Preclusion is satisfied. There's my final judgment on the merits you up in element. Number two might be satisfied as well. Sounds like this second lawsuit arises out of the same incident that gave rise to the earlier suit. Number one, there was an automobile accident at this intersection involving these three cars. Yep. Same transaction or occurrence, but element number three would not be satisfied in that hypo because we don't have the same parties in suit. Number one and suit number two full stop. Now the idea of privity gives you a little wiggle room here, but don't overuse it. Imagine that the plaintiff is injured by a defective product. So they Sue the company that manufactured that product. If that plaintiff loses in a suit, number one, can they then Sue the importer? That is a wholly owned subsidiary of the manufacturer. Okay. Now we won't allow that they're in privity another example. Imagine you Sue your neighbor for trespass after they build garage that you claim trespasses on your property, you win or lose that suit. Number one, which reached a final judgment on the merits, but then your neighbor that built that garage, they sell their house. And now there's a new owner. Next door. Can you Sue the new owner in a suit, number two, claiming that their garage trespasses on your property in those circumstances, we would allow the defendant to invoke the doctrine of claim preclusion here, saying that with respect to this element, number three, they are in privity with the parties that litigated in suit. Number one, that's it for claim preclusion. Let's now address issue preclusion, which is trickier. This doctrine prevents someone who has litigated an issue from re litigating that issue. This is about preventing re litigation by contrast claim. Preclusion was only sort of about preventing real litigation with claim preclusion. Yet we were preventing further litigation of a claim, but we were preventing it. Whether the plaintiff actually litigated it in suit number one or not. Remember we said, you can get a new lawyer and some new causes of action, but the whole claim was swept in to the final judgment in suit. Number one, by contrast issue, preclusion is only about preventing someone who actually litigated some issue from re litigating that issue a second time, when we're talking about issue preclusion, the re litigator in suit, number two, they might be a plaintiff or a defendant. So our plaintiff or defendant in suit, number two might be trying to re litigate some issue from a suit. Number one, they might've been a plaintiff or a defendant in that earlier suit. Number one, and they might've won or lost that suit. Number one, and they might've won or lost the issue that was litigated in suit number one. But when the doctor Neff issue preclusion applies, we are going to preclude them from re litigating it, there are three traditional elements for issue preclusion, but again, this is trickier than it looks so stay tuned. After you hear the three elements element. Number one is familiar element. Number one is final judgment on the merits. This is exactly the same thing that we saw in the context of claim preclusion. If suit number one, hasn't reached a final judgment. And unless that final judgment is on the merits, then no issue can be extracted from suit. Number one, to prevent real litigation in a suit number. Yeah, two element number two is that the issue must have been fully and fairly limited in suit. Number one, when you're analyzing this element, you might think about both of those words separately, fully and fairly litigated. What does it mean for him issue to be fully litigated? If you were trying, trying to satisfy this element, you would hope that the fact pattern would describe it, how that issue got lots of attention from the parties. It was hotly contested. There was lots of testimony. There were pages or days of transcript devoted to that issue. There was ex expert testimony and lay testimony and arguments. It was very vigorously disputed. Now litigated in that sense fully and fairly litigated litigated doesn't necessarily mean the issue reached a trial, but it does need to be actually litigated. Therefore, this second element is not satisfied if the issue wasn't contested. So if it was admitted or stipulated to that is not actual litigation further, we know that the issue must also be fairly litigated in suit number one, and that puts a similar but slightly different gloss on our inquiry here, inquiring about whether there was fair litigation of the issue is a good prompt to go back to the fact pattern and find some details that might allow you to analyze this issue. Trying to make sure here that there weren't any constraints on the litigation of that issue. The idea of this element number two, is that if we're going to event re litigation of this issue, well, then we want to make sure that it really got the full treatment in suit. Number one, if only if element number two is satisfied, then it's on to element number three, three, which demands that the issue was necessarily decided in suit. Number one, put another way. This issue must have been essential to the judgment in suit number one. So you might imagine for example, that in the earlier suit, number one, there was substantial litigation over whether the goods conformed to the contract specifications or substantial litigation about whether someone gave their permission or substantial litigation about whether someone had the intent to do something, or maybe it's whether somebody lacked mental capacity or maybe it's whether the defendant was speeding when the car accident happened well. Okay. That's all good that that discussion happened in the earlier suit. Number one, but in order for you to extract an issue from that suit, number one, and preclude someone from re litigating it in suit, number two, you must establish that the resolution of that issue was essential to the judgment and suit number one. So imagine for example, that in a simple negligence action arising out of a car accident, imagine that in that suit to plaintiff advanced two theories by which the defendant was negligent, one that the defendant was speeding. And two that the defendant ran a red light because she wasn't wearing her prescription eyeglasses. Imagine that either of those would be sufficient to establish negligence and imagine that both of those issues were hotly contested in suit number one. And in that suit, number one, the jury returned a general verdict for the plaintiff. From that general verdict for the plaintiff, we could establish that it was necessarily decided, and it was essential to the decision that the defendant was speeding or not wearing their glasses. But notice how you can't isolate one of those two and say that it was essential to the court's decision under these circumstances could not preclude that litigant from re litigating the issue in a suit. Number two of whether the driver was speeding like a logic puzzle, you need to be able to say that the specific issue for which you're trying to prevent re litigation, that that issue was necessarily decided. And often there will be hotly contested issues that aren't necessarily embodied in an element of whatever cause of action or of whatever affirmative defense, a common mistake here is trying to extract from an earlier suit, some general sentiment or vibe that would be useful to prevent someone from re litigating in a subsequent suit here in suit. Number two, I'd like to prevent this defendant from re litigating the issue of whether they are a sexist pig or whether they're afraid of dogs, whether they're careless when fulfilling customer orders, whether they're a bad neighbor, but while those issues might have received a lot of attention, those aren't likely to be issues that were necessarily decided by a court put another way they aren't elements of causes of action. And so we are going to have a hard time arguing that the fact-finder necessarily resolved that issue, but issue preclusion is great when there was a suit number one that reached a final judgment on the merits. And there was some issue that was fully and fairly litigated, and it was necessarily decided because if that issue is present in suit, number two, we may be able to preclude re litigation of it saves
Speaker 3:Us time, saves us money, saves
Speaker 2:Us worrying about the uncertainty of losing that issue. Being able to lock that issue down. It might even get us a summary judgment. Let's get a simple example out here, and let's use one that also further distinguishes issue preclusion from claim preclusion with issue preclusion, the earlier suit. Number one can even be a criminal suit. That's not something we're going to see with claim preclusion because with claim preclusion, we require the same parties to be present in both suit. Number one and suit number two, but let's say you have a fact pattern involving a personal injury action arising out of a car accident involving the plaintiff and the defendant. And the fact pattern tells you that this defendant has been charged criminally with drunk driving and further you're told in the fact pattern that the defendant challenged that citation. She vigorously defended herself in court, and she had lawyers and experts, and she was convicted for driving under the influence. Well, in this scenario, then our personal injury suit against that drunk driver is the suit number two. And we're in a very good position to preclude the defendant from re litigating the issue of whether they were intoxicated at the time of the accident. That's actually your dream example of issue preclusion. All of the elements are in full force there. Next, imagine that the alleged drunk driver that we were just talking about, imagine that the drunk driver prevailed in suit number one. And again, imagine that that issue was hotly contested with lawyers and experts and that they were found not guilty. Well, here we are in suit. Number two, is there any way that the defendant can use that acquittal with issue preclusion answer? Absolutely not. I thought even though same parties is not one of our three elements for issue preclusion. Hey, it wasn't on the list. It was for claim preclusion, not for issue preclusion. Yeah, that's true. It's not on the list, but that's because we're supposed to know that preclusion is only about preventing re litigation in this scenario. The party that we would be precluding would be the plaintiff in the personal injury suit, but they haven't litigated anything. This is suit number two in the grand scheme, but for that particular litigant, this is the first time they've litigated. This issue. These doctrines of preclusion are about preclude fooding re litigation by a repeat party. When we invoke these doctrines to silence or to preclude someone from re litigating it's because that part 30 already had their chance. You think of these doctrines as allowing you to put your hand over someone's mouth to preclude them from re litigating something in a suit. Number two. Well, the mouth that you're silencing needs to be a re Peter. If it's not a suit number two for that party, well then you're not even using preclusion law. You've just gone rogue and you're just violating the due process clause by denying someone their day in court with issue preclusion, unlike with claim preclusion, the person or entity doing the precluding, the person or entity putting their hand over another's mouth. Well, that person doesn't need to be from suit number one, but the person or entity who is being precluded does we're circling here around a doctrine called mutuality. Mutuality just means that it's the same parties in suit. Number one, and in suit number two, claim preclusion has a mutuality requirement, the person doing the precluding and the one being precluded. They both need to have been in the earlier suit. Number one in most jurisdictions, however, issue preclusion does not have a mutuality requirement. Again, the one being precluded needs to be a real litigator, but not the one who is invoking the doctrine. And when a new party is invoking issue preclusion, we call this non-mutual. And when the new party is invoking issue preclusion to prevent re litigation by a defendant, well, we call that the offensive use of issue preclusion. So if that describes the offensive use of issue preclusion, well then obviously when the party invoking issue, preclusion is a defendant and they're invoking it to prevent re litigation by a plaintiff. Well, then we call that defensive use. Now I should warn you that if you're working for a lawyer or a judge who is at least 50 years old, they're probably going to use some slightly different terminology here. They will refer to collateral estoppel rather than issue preclusion. It's the same thing. Issue preclusion equals collateral estoppel, but in the context of this offensive and defensive use of issue, preclusion, you will routinely see the terms non-mutual off fence of collateral estoppel, and non-mutual defensive collateral estoppel. Those will be the more frequently used terms in practice. So let's think about this. Non-mutual defensive collateral estoppel in suit. Number one, plaintiff sues a competitor for infringement of the plaintiffs. Let's call it the XYZ patent and imagine that the parties in that suit, number one, hotly contest the validity of that patent. And after a lengthy trial, there is a special verdict with the fact-finder concluding specifically that plaintiffs XYZ patent is invalid. Now imagine a suit number two, and here comes this same plaintiff. And now they're trying to Sue a different competitor for infringement of the plaintiff's XYZ patent. It's the same patent, but a new defendant, because the issue of the validity of the patent was fully and fairly litigated and was necessarily decided in a suit. Number one that reached a final judgment on the merits. Well then competitor number two, the defendant in suit, number two, who wasn't a party in suit. Number one can preclude the repeat litigator from re litigating the issue of the validity of their patent. That's a non-mutual defensive invocation of the doctrine of issue preclusion or collateral estoppel. Now it doesn't necessarily mean that defendant's going to win the suit. It just means that, Hey, I can cover their mouth from re litigating the issue of whether their path and is valid. That's not something that we have to worry about litigating here in suit. Number two, I can preclude them from re-litigating that issue. So what we have here as a doctrine where someone who didn't litigate in suit, number one can take advantage of issues that they like that were litigated in suit number one, but notice that they aren't bound by issues that they didn't like since after all, if the court in that suit, number one had found the patent valid. We'll notice that we wouldn't have allowed that plaintiff from suit. Number one, to take that issue of the patents validity into suit number two, and to preclude defendant in suit. Number two from litigating the validity of the patent, because that defendant in suit number two is not a re litigator. This is a one-way ratchet. So it didn't take long for lawyers to take advantage of that. Imagine a passenger train with 100 persons, a board is involved in an accident and passenger number one alone, sues the railroad for negligently hiring this terrible engineer. Notice that if passenger number one wins a final judgment on the merits, all of the other 99 passengers are in a really good position to use issue preclusion or offensively. If there is some issue like negligence that is fully and fairly litigated and necessarily decided yet if that same passenger number one loses their suit with a final judgment on the merits or the reverse isn't true. The railroad cannot preclude passenger. Number two in a subsequent action from re litigating the issue of the railroad's negligence, because passenger number two, isn't a re litigator and further still imagine that passenger number two loses, and that then passenger number three files a suit and they lose. And then imagine that passenger number four files a suit and they lose preclusion is about preventing really litigation. And the railroad is the only relief Gator here. But then what if plaintiff number five won in a final judgment on the map? Well, if in suit number five, the plaintiff wins well, then what plaintiff's number six through a hundred or aren't they gonna then want to use any issue that was fully and fairly litigated and necessarily decided this is where the ones way ratchet doesn't seem fair at all. And so here's what we say in these non-mutual offensive collateral estoppel circumstances. We have a couple of additional considerations that courts take into account. First courts are not going to tolerate a wait and see strategy where plaintiffs get all the upside of waiting with none of the downside risk. So where you have someone waiting to see just like those subsequent passengers on the train, waiting to seize the upside of the when, but without incurring any of the risk of a loss issue, preclusion may not be available to them. Second, there is a danger that defendants may not fully appreciate the risk of non-mutual offensive, collateral estoppel, and as such courts do recognize circumstances where it would be unfair to preclude them from re litigating an issue in a future suit. Number two, imagine for example, that some suit number one involved in allegedly defective product, imagine that in this suit, number one, they're sued in some really inconvenient forum where discovery is limited by local rule, but you know what the plaintiff's damages are so small that defendant manufacturer doesn't really pull out all the stops and defense. It doesn't hire them best lawyers. It just hires some locals and it doesn't really bother contesting the forum, even though there are some strange constraints imposed by litigating there, and then imagine that the defendant loses that case at trial. Okay? And so the defendant pays the plaintiff, the$15,000 in damages, not a big deal, and it wasn't a big deal until, uh, their plaintiffs and other plaintiff's lawyers could see the opportunity to leverage the doctrine of non-mutual offensive collateral estoppel to use this as the suit, number one for their forthcoming suits. And so to ensure fairness, we allow defendants in these situations to make arguments that it wouldn't be fair to allow collateral estoppel. Imagine that the earlier suit was a small claims court where they couldn't even have legal representation, or imagine that it was some accelerated process, or as we've already discussed, just really small stakes, just like we added an additional consideration for the wait and see plaintiff a second consideration is basic fairness. So remember that judges have discretion here with respect to issue preclusion. If it doesn't seem fair, we shouldn't expect a judge to allow it. That's what discretion is all about. So those are our two doctrines of preclusion claim preclusion, three elements, final judgment on the merits, same claim, same parties, issue preclusion, three elements, final judgment on the merits, fully unfair, early litigated, necessarily decided and were all three of those conditions are satisfied and you're looking at non-mutual offensive, collateral estoppel. Remember the two additional considerations, one we're reluctant to allow, wait and see plaintiffs to take advantage. And number two, we are on the lookout for unfairness, where, for example, the litigant in the earlier suit, didn't have certain procedural opportunities when litigating the issue that would be available to them. When allowed to re litigate that issue. I want to wrap up this episode with three common mistakes, and each of them involves invoking preclusion law where it doesn't belong. The first one you already know do not make the mistake of invoking preclusion law to preclude someone who didn't even litigate in the earlier suit. That is not about preclusion. That's just a gross violation of the due process clause. Second, do not make the mistake of confusing preclusion law and case precedent. When an appeals court, for example, interprets or reinterprets a statute, it gives meaning to the underlying substantive law. That interpretation is binding on all of the courts that are inferior to that court. That's not claim preclusion, that's just refinements to the underlying law. And then finally, number three, don't confuse preclusion law with the doctrine called law of the case. The law of the case doctrine is a loose principle that discourages judges from revisiting determinations that they already made in that case. So it's within a single case. It's why even if a case gets transferred or assigned to another judge, the new judge or the new court is unlikely to revisit any determinations that were made previously in the action. It kind of looks like preclusion law because if a defendant made a 12, B six, and that motion was denied, can they bring that motion again? The following week, it kind of looks like preclusion law, but notice that there isn't a final judgment on the merits. Indeed the law of the case doctrine is all about determinations made within a lawsuit. So those are the three rookie mistakes that you won't make.
Speaker 1:And then intern wraps up
Speaker 4:This episode of the civil procedure podcast. I hope that this overview of preclusion law is helpful. I appreciate your attention and I hope you have a good day.[inaudible].