Overview Judgments (Preclusion)

Question 1

Claim Preclusion (see Chapter 7)

What are the basic elements required for claim preclusion?

1. There must have been a ______ issued in case #1
2. Preclusion over any claims that either 1) ______; OR 2) Should have been ___________________.
   - What claims __________? [Note: same as above]
   - Claims that were _________ related
3. Preclusion only applies to parties that _______
   • …or their ______

Answer 1

What are the basic elements required for claim preclusion?

1. There must have been a judgment issued in case #1
   
   • Judgment must have been valid
   • Judgment must have been final
   • Judgment must have been ‘on the merits’
2. Preclusion over any claims that either 1) Were; OR 2) Should have been brought in the first lawsuit
   
   • What claims should have been brought?
     - Claims that were transactionally related
3. Preclusion only applies to parties that were the same in case #1 and #2
   
   • …or their privies

Question 2

Claim Preclusion (see Chapter 7)

Let’s expound on the basic elements required for claim preclusion.

The first required element of claim preclusion is that there must have been a judgment issued in case #1. What are the required elements of this judgment?

- Judgment must have been \_\_\_\_\_
- Judgment must have been \_\_\_\_\_
- Judgment must have been '\_\_\_\_\_ the \_\_\_\_\_'

Answer 2

1. There must have been a judgment issued in case #1
   
   • Judgment must have been valid
   • Judgment must have been final
   • Judgment must have been ‘on the merits’

Question 3

Claim Preclusion (see Chapter 7)

The second required element of claim preclusion is that there is Preclusion over any claims that either 1) Were; OR 2) Should have been brought in the first lawsuit

What claims are those that should have been brought in the first lawsuit?

Answer 3

Claims that were transactionally related.

Question 4

Claim Preclusion (see Chapter 7)

The third required element of claim preclusion is that Preclusion only applies to parties that were the same in case #1 and #2. But there is an exception. Who else may apply?

Answer 4

Their privies.

Question 5

Issue Preclusion (see Chapter 7)

What are the two basic elements required for issue preclusion, according to the modern/majority rule? (based on mutuality of estoppel)

1. There must have been a ______ issued in case #1
2. Issues precluded must have been:
   • Actually ______;
   • Determined;
   • ________ to the _______

Answer 5

1. There must have been a judgment issued in case #1
2. Issues precluded must have been:
   • Actually litigated;
   • Determined;
   • Essential to the judgment

Question 6

Issue Preclusion (see Chapter 7)

What is the difference between the Modern/Majority Rule versus the Traditional/Minority Rule on Issue Preclusion (aka Mutuality of Estoppel)?

Answer 6

Modern/Majority Rule: Preclusion allowed even when not same two parties

Traditional/Minority Rule: Mutuality of Estoppel - preclusion only allowed when same two parties in both cases

Question 7

Defensive Collateral Estoppel (see Chapter 7)

According to the Defensive Collateral Estoppel:

• Allows _______ to use as a Shield a finding involving the _____ in prior case
• Applies in cases involving same _____ but different _______

Defensive Collateral Estoppel situation:
Case #1: Plaintiff v. Defendant 1 (Defendant 1 wins)
Case #2: Plaintiff v. Defendant 2 (_______ may use Defensive Collateral Estoppel to take findings from case 1)

Answer 7

According to the Defensive Collateral Estoppel:

• Allows defendant to use as a Shield a finding involving the plaintiff in prior case
• Applies in cases involving same plaintiff but different defendant

Defensive Collateral Estoppel situation:
Case #1: Plaintiff v. Defendant 1 (Defendant 1 wins)
Case #2: Plaintiff v. Defendant 2 (Defendant 2 may use Defensive Collateral Estoppel to take findings from case 1 against the same plaintiff)

Question 8

Offensive Collateral Estoppel (see Chapter 7)

• Allowed a _______ to use as a sword a finding involving the _______ in a prior case
• Applies in cases involving new ______ but same ______

Offensive Collateral Estoppel situation:
Case #1: Plaintiff 1 v. Defendant (Plaintiff 1 wins)
Case #2: Plaintiff 2 v. Defendant (_____ may be entitled to use Offensive Collateral Estoppel)

Answer 8

Allowed a second plaintiff to use as a sword a finding involving the same defendant in a prior case
- Applies in cases involving new plaintiff but same defendant

Note: Largely beginning to be overturned

Offensive Collateral Estoppel situation:
Case #1: Plaintiff 1 v. Defendant (Plaintiff 1 wins)
Case #2: Plaintiff 2 v. Defendant (Plaintiff 2 may be entitled to use Offensive Collateral Estoppel)

Question 9

Offensive Collateral Estoppel (see Chapter 7)

The principal of Offensive Collateral Estoppel has largely begun to be overturned. Why?

** Hint: Supreme Court opinion in Parklane Hosiery Co. V. Shore

Answer 9

For Public Policy reasons:

Offensive Collateral Estoppel provides a disincentive to join cases together.

“Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action.” - J. Stewart

Parklane Hosier Co. v. Shore

Question 10

Offensive Collateral Estoppel (see Chapter 7)

What are notable exceptions to Offensive Collateral Estoppel?

1. If Plaintiff 2 had _____.
2. If Defendant had __________ to vigorously litigate
3. If _______ prior verdicts
   
   • train passenger example?
4. If ________ did not exist in first case, but are available in second case

Answer 10

Exceptions to Offensive Collateral Estoppel:

1. If Plaintiff 2 had ability to join
2. If Defendant had ‘insufficient incentive’ to vigorously litigate
3. If inconsistent prior verdicts
   - Famous example: 50 passengers independently sue train for negligence, the first 25 passengers lose, the 26th passenger wins, the 27th passenger is not able to take the verdict in favor of 26th passenger and apply it
4. If procedural opportunities did not exist in first case, but are available in second case

Question 11

Preclusion (see Chapter 7)

Below are the requirements for _______ Preclusion?

A. Issue
B. Claim

1. There must have been a judgment issued in case #1
   
   • Judgment must have been valid
   • Judgment must have been final
   • Judgment must have been ‘on the merits’
2. Preclusion over any ___ that either 1) Were; OR 2) Should have been brought in the first lawsuit
   
   • What ____s should have been brought?
     - ___s that were transactionally related
3. Preclusion only applies to parties that were the same in case #1 and #2
   
   • …or their privies

Answer 11

B. Claim

Question 12

Preclusion (see Chapter 7)

Below are the requirements for _______ Preclusion?

A. Issue
B. Claim

1. There must have been a judgment issued in case #1
2. ____ precluded must have been:
   • Actually litigated;
   • Determined;
   • Essential to the judgment

Answer 12

A. Issue