Civil Procedure Essay Rules

Front 1

Res Judicata

Back 1

Valid final judgments on the merits of a claim preclude reassertion of the same claims between the same parties.

i) Same parties (same P same D)

ii) Same claim (right to relief arising out of the same transaction or occurrence)

iii) Valid final judgement (nothing left but execution)

iv) On the merits (i.e. NOT disposed of for lack of jurisdiction or

improper venue. Soft or dismissal w'out prejudice)

Front 2

Collateral Estoppel

(issue preclusion)

Back 2

Precludes litigation of particular issues that have already litigated.

i) a party against whom it is asserted must have been a party in the prior lawsuit

ii) Identical issues of fact

iii) Actually litigated and determined

iv) necessarily determined (essential to final judgment)

v) Full and fair opportunity to litigate in the prior case (same incentive)

Front 3

Collateral Estoppel Essay Approach

Back 3

1. Give the rule (above).

2. Analyze all 5 elements (above).

3. Against whom is collateral estoppel being asserted? Based on that, characterize it as non-mutual defensive or non-mutual offensive, which requires an analysis of factors:

Front 4

non-mutual defensive

Back 4

Defense by a non-party to that earlier case

A judgment in the first action may be asserted as a defense in a later action by one who was a non-party in the first action, as long as the party against whom the judgment is raised was a party or in privy in the first.

Front 5

non-mutual offensive

Back 5

A non-party uses the earlier case to establish liability

A non-party may use a judgment in an earlier case to establish liability against someone who was a party to the earlier case.

Court will weigh several factors:

i) Foreseeability of another lawsuit

ii) Whether there was a full & fair opportunity to litigate (similar motive)

iii) Could the new plaintiff have easily joined the earlier lawsuit?

(Courts do not like "wait & see" plaintiffs)

iv) The policy of avoiding inconsistent judgments