Discovery: Appeals and Preclusion

Question 1

what are the characteristics of claim preclusion?

Answer 1

a matter has been adjudicated by a competent court, and may not be pursued further by same parties. applies to arguments not made in any prior lawsuit (merger and bar)

Question 2

what type of method is claim preclusion?

Answer 2

one bit of the apple method (you only get one chance to sue and must ask for all of the relief and claims possible or you lose out)

Question 3

what is collateral estoppel?

Answer 3

when two suits involve a new cause of action

Question 4

what are the two effects of claim preclusion?

Answer 4

1) prevents relitigating same claim

2) prevents bringing up parts of claims that should have been advanced the first time

Question 5

What are the fairness factors of nonmutual offensive estoppel?

Answer 5

1) full and fair opportunity
2 )D could foresee multiple suits
3) D could not have joined easily in case 1
4) no inconsistent judgements

Question 6

what is the minority view of claim preclusion?

Answer 6

1) primary rights

2) bodily protections v property damages

Question 7

in fed ct when can you appeal?

Answer 7

not until final judgement is entered

Question 8

what are the 5 elements for there to be issue preclusion?

Answer 8

1) both cases brought by the same claimant against the same respondent (same parties, same configuration)
2) particular issue was ACTUALLY LITIGATED AND DETERMINED in case 1 (default judgement not enough)
3) issue was essential to case 1 (without specific finding on the specific issue in case 1, court would not reach same result)
4) AGAINST WHOM is the collateral estoppel being used? (can only use against someone who was a party to case 1 or someone who is in privity with a party to someone in case 1)
5) BY WHOM is issue preclusion used? (mutuality)

Question 9

what is a final judgement?

Answer 9

a decision on the merits of a case

Question 10

if the plaintiff allege all claims arising in an action, what does that prevent?

Answer 10

1) multiplicity of suits (saves judicial resources)
2) burdensome expense
3) delays to plaintiff’s recovery
4) actions brought without grounds against D

Question 11

what is the general rule of nonmutual offensive estoppel?

Answer 11

in cases where a P could easily have joined a D or where that D may be unfairly prejudiced, A TRIAL JUDGE SHOULD NOT ALLOW THE USE OF COLLATERAL ESTOPPEL

Question 12

when is there no collateral estoppel?

Answer 12

if an issue is not essential to judgement

Question 13

what is bar?

Answer 13

same but opposite of merger

Question 14

who is nonmutual offensive estoppel (park lane) used by?

Answer 14

the plaintiff

Question 15

rules for interlocutory appeals as a matter of right (rare and disfavorable)

Answer 15

1) if trial judge certifies that here is a controlling question of law and the court of appeals agrees, then parties can appeal
2) determination of orders certifying denying class action status
3) determination of whether sovereign immunity applies

Question 16

what is the majority view of claim preclusion?

Answer 16

1) federal law is transactional even where a series of transactions are involved
2) focuses on the particular being asserted Case 1 = damages, case 2 = personal injury (same occasion, 2 claims involved)

Question 17

what does issue preclusion do?

Answer 17

prevents a subsequent or second suit on the same issue between the same parties

Question 18

how to use nonmetal defensive collateral estoppal (Bernhard) in determining the validity of res judicator?

Answer 18

1) was the issue decided in the prior adjudication identical with the one presented in the action in question?
2) was there a final judgement on the merits?
3) was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication

Question 19

what is a merger?

Answer 19

plaintiff sues on claim, wins and claim merges into judgement. (sue for negligence, win judgement, negligence merges into the claim that he was negligent into another case)

Question 20

what are the 3 elements to check for to have claim preclusion?

Answer 20

1) both cases brought by same claimant against the same respondent (same parties, same configuration)
2 )case 1 MUST have ended in a final judgement on the merits (any judgment in favor of the claimant is on the merits (includes default judgments)
3) CASE 1 AND CASE 2 ASSERTED THE SAME CLAIM

Question 21

what does nonmutual offensive estoppel do?

Answer 21

increases number of lawsuits as the plaintiff will wait to see which claims succeed against different def and causes unfairness to the D

Question 22

what did Rush v. city of maple heights bring to the table? (preclusion)

Answer 22

a single tort can but be the the basis of one action, plaintiffs MUST allege all claims arising

Question 23

issue preclusion aka

Answer 23

collateral estoppel

Question 24

rules of appeals and preclusion

Answer 24

1) if a party litigates only one part of a claim, they’ve waived the change to litigate the rest
2) only ONE chance to litigate a factual or legal issue
3) party is entitled to one “full and fair chance to litigate before having claim/issue barred”
4) preclusion may be waived unless it is

Question 25

when does issue preclusion apply?

Answer 25

only to matters argued and decided at an earlier lawsuit.

Question 26

claim preclusion aka

Answer 26

res judicata

Question 27

what is privity?

Answer 27

successor in interest; rep for class action; contractually in privity; someone treated as legally icing in the exact same posture (because of due process)

Question 28

what is direct estoppel?

Answer 28

when two suits involve the same cause of action