Issue Preclusion

Question 1

What does Issue Preclusion do?

Answer 1

Forbids relitigation of factual or legal determinations made in a prior proceeding

Question 2

When does issue preclusion occur?

Answer 2

In a subsequent action between the parties, whether on the same or a different claim, when

• A same issue of fact or law has been
• actually litigated and determined
• by a valid and final judgment, and
• the determination was essential to the judgment

Question 3

What does issue preclusion prevent relitigation of?

Answer 3

A specific issue, rather than a whole claim

• Even if subsequent claim is different
• Even if subsequent claim isn’t barred
• Only if actually litigated
• Even if no “on the merits” final judgment
• Can be invoked by someone who wasn’t a party in the initial proceeding

Question 4

What are the benefits of issue preclusion?

Answer 4

Avoids waste of time / expense of relitigating the same issues and prevents undermining judicial authority

Question 5

What are the costs of issue preclusion?

Answer 5

First filed action decides issues, where a different judge / jury might decide differently or more in line with evidence presented in second proceeding

Question 6

What does a court look at to determine if this is the “same issue”?

Answer 6

• How closely related are the claims
• Whether events giving rise to the claims took place at different times
• Whether the parties had the same burdens in both actions
• Overlapping or different evidence
• Same or different legal rules
• Whether pre-trial preparation / discovery would have been the same

Question 7

What are the exceptions to Issue Preclusion?

Answer 7

(1) The party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action (i.e. prevailing party in the first action)

(2) The issue is one of law and
(a) the two actions involve claims that are substantially unrelated; or
(b) A new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or

(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or

(5) There is a clear and convincing need for a new determination on the issue because:
(a) of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action;
(b) it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action;
(c) the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action