Trial Procedure and Res Judicata

Question 1

What is a “note of issue”?

Answer 1

it is a filing that places the matter on the trial calendar. The filing party must serve copies on everyone else.

Question 2

If you are entitled to a jury, how must you request one?

Answer 2

If you file the note of issue, you must request one in the note of issue.

If you did not file the note of issue, you must make a separate demand.

Failure to request a jury is considered waiver.

Question 3

What civil actions entitle a defendant to a jury trial?

Answer 3

1. action seeking money damages only
2. replevin
3. claim to real property
4. annulment of a marriage
5. fault in a divorce action

Question 4

How many jurors are required for a civil trial, and how many are required to render a verdict?

Answer 4

6, and they can decide a verdict 5:1.

Question 5

What is res judicata?

Answer 5

Claim preclusion: once you get a final judgment against D, any other claims arising out of the same T/O are barred (even if based on other theories).

Question 6

What is the one exception to res judicata?

Answer 6

In matrimonial disputes based on domestic violence, the battered spouse can bring a separate claim about the abuse even though it arose out of the same T/O underlying the matrimonial dispute.

Question 7

What is collateral estoppel?

Answer 7

Issue preclusion: when specific fact issues were decided in a prior proceeding they cannot be litigated again if:

• the issues are identical,
• the issue was actually litigated and decided in the prior proceeding,
• the party against whom the issue preclusion is asserted had a full and fair opportunity to litigate the issue in the former proceeding