Preclusion - Issue preclusion

Question 1

What is issue preclusion or collateral estoppel?

Answer 1

Narrower, an issue that came up in case one comes up in case two. We will not allow relitigation in case two.

Question 2

What are the requirements of issue preclusion?

Answer 2

1) Case one ended in valid final judgment on merits;
2) The same issue was actually litigated and determined in case 1;
3) issue essential to judgment in case 1 (without it judgment would have been different)
4) Can only be asserted against someone who was party to case 1.
5) Issue preclusion can be asserted by someone who was or wasn’t party to case 1.

Question 3

By whom can issue preclusion be asserted?

Answer 3

Traditionally against only someone party to case 1 but due process doesn’t require this and some courts have allowed non mutual issue preclusion meaning it can be used by someone not a party to case 1.

Question 4

We know that you can use issue preclusion when you are defending but can you use issue preclusion on the offensive?

Answer 4

Generally you cannot but a clear trend in the law will allow if it isn’t unfair.

Question 5

What are some factors that would allow an offensive issue preclusion?

Answer 5

1) You had a full and fair opportunity to litigate case 1;
2) You could see multiple suits;
3) You could have joined easily to case 1; and
4) there are no inconsistent findings on this issue.