Pg 38

Question 1

What is mutuality of estoppel?

Answer 1

Traditionally estoppel had to be mutual and the only parties that could invoke collateral estoppel were those that were involved in the previous suit. Modernly this rule has been abandoned in many jurisdictions.

Question 2

What was the Bernhard case that changed mutuality of estoppel from being a requirement for collateral estoppel?

Answer 2

The plaintiff sued the executor of her aunt’s will who said that $4500 was given to him as a gift and the court found for the executor. P then sued the bank saying they shouldn’t have allowed the executor to get that money. Collateral estoppel applied because the court had already decided it was a gift. But this is non-mutual because the bank was not a party to the first suit where the issue was initially decided.

Question 3

What is the traditional mutuality of estoppel approach and the modern one for collateral estoppel?

Answer 3

– Traditional issue preclusion: parties are estopped from relitigating issues that they already litigated in a prior suit and lost. Collateral estoppel could only be used by the original parties.
– Modernly: collateral estoppel can be asserted both offensively and defensively by appropriate third parties.

Always discuss both of these on an essay

Question 4

What are the limitations on non-mutual collateral estoppel?

Answer 4

Due process and fairness considerations. The only way to use it against a non-party is to ask if the party has had a chance to fully litigate the issue

Question 5

What is non-mutual collateral estoppel?

Answer 5

A new party can invoke collateral estoppel against a party that litigated and lost on an issue in a prior action

Question 6

If a landowner sued a tenant and lost because the lease wasn’t valid, can he sue a different tenant on the same lease?

Answer 6

No, because non-mutual collateral estoppel would estop him since he already litigated that issue and lost. Due process allows everybody a chance to try their case and the second tenant hasn’t had his chance yet.

Question 7

Non-mutual estoppel says that it is ok to allow a party to take advantage of findings in an earlier suit to estop a party that has litigated the issue already as long as what?

Answer 7

That party had a full and fair opportunity to litigate the issue the first time.

Question 8

In every non-mutual collateral estoppel case, one of the parties to the second suit had to have been what?

Answer 8

A party to the first suit

Question 9

Collateral estoppel is discretionary when it is non-mutual and so it is only applied if the court is convinced that what?

Answer 9

The person that is being brought against had a full opportunity and incentive to litigate the issue in the first action

Question 10

What are the two different types of non-mutual collateral estoppel?

Answer 10

Defensive and offensive

Question 11

What is defensive non-mutual estoppel?

Answer 11

The second defendant invokes estoppel to prevent the plaintiff from relitigating an issue that he previously litigated and lost.

P [1] V. D [1]
P [1] V. D [2]
——————— same P

Question 12

What is offensive non-mutual estoppel?

Answer 12

The plaintiff tries to stop the defendant from the relitigating an issue that he previously litigated and lost against a different plaintiff.

P [1] V. D [1]
P [2] V. D [1]

Question 13

What are problems that often come up with non-mutual estoppel?

Answer 13

• some parties take a wait and see approach instead of joining the suit
• a party might not litigate as aggressively in the first action if the stakes are small because he has no incentive to do so
• the procedural rules of the court in the first case might have been more restrictive than the court in the second

Question 14

What must a court be convinced about before it will use collateral estoppel?

Answer 14

• That the party had a full opportunity to litigate the issue in the first case
• That he had every incentive to litigate
  – If it could’ve been foreseen that there would be multiple suits
  – If he could’ve easily joined the first action
  – If there are no inconsistent judgements on the record

Question 15

Must non-mutual estoppel meet all of the elements of collateral estoppel?

Answer 15

Yes, this is just a type of collateral estoppel. Plus it must also consider the additional factors of things like whether the person had an incentive to litigate and a full and fair opportunity to do so to see if it would be fair to preclude relitigation from the prior action in a new suit with a new party

Question 16

What are things to watch out for with regard to non-mutual collateral estoppel?

Answer 16

If there’s a situation where the plaintiff sues D1 and wins, and then he sues D2. That is not a collateral estoppel situation because D2 has not had his day in court. The estopped party must always have been a party in the first suit and had a chance to litigate the issue

Question 17

If a second action is filed in a different court such a state court instead of federal court, how is the preclusive effect of collateral estoppel determined?

Answer 17

By the preclusion rules of the court that rendered it, even if they are different in the court system where the second suit is brought. Just lets the parties know as soon as a judgement is rendered what its preclusive effects will be without having to wait and see what court system will hear a later action when preclusion is sought