Begin to Understand Issue Preclusion IP

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Begin to UnderstandIssue Preclusion (IP)
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CP and IP are Distinct

• In analyzing impact of prior adjudication, always
  analyze both
• (a) is there CP?
• (b) is there IP?

• It may be that, even if one does not apply, the
  other does.
• E.g., if second case doesnt involve same
  claim, there cant be CP but may be IP.
• Claim may not be barred, but relitigation of
  issues may be!

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What IP Does.

• Where IP applies, the party against whom it is
  asserted is precluded from relitigating a fact
  that was decided in earlier litigation.
• E.g., if in 1st suit against Bob a jury finds
  that there was no contract between Bob and Susie,
  if Susie again sues Bob, that jury finding will
  preclude Susie from arguing that there was.
• If, that is, IP applies.

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Why We Have IP.

• To protect the integrity of the prior judgment
  by precluding the possibility of opposite results
  by two different juries on the same set of
  facts 689.
• the needs of judicial finality and efficiency
  outweigh the possible gains of fairness or
  accuracy 690.

• Whats Yeazell driving at in note 3 on 690?
• What values does IP protect, if its not truth
  ascertainment?

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Who Can Use IPOffensive Defensive Use

• Suppose Susie sues Bob, and there is a finding of
  no contract.

• If Susie sues Bob again, Bob can use IP
  defensively to preclude Susie from arguing that
  there was a contract.
• Noncontroversial
• Can someone else sue Susie and offensively use
  the finding that there was no contract?
• Some controversy.

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IP 4 Essential Inquiries

• Whether or not the subsequent action involves the
  same claim, IP applies
• (1) Same issue of law or fact involved in prior
  suit
• (2) That issue was actually litigated and
  determined
• (3) Determination of that issue was essential to
  judgment and
• (4) There was a final judgment.

• Only if the answer to all four questions is
  yes, is the determination of that issue
  conclusive in a subsequent action.
• Even then, it is only preclusive if it is
  between the parties.
• The who can use issue.

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(1) The same issue

• Is the issue in the first suit the same issue as
  in the second?
• Did the person commit fraud?
• Was the contract executed on Thursday?
• And so on

• If the first and second cases involve different
  burdens of proof, stop and think!
• Problems 687
• 1
• 2
• 3

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(2) Actually Litigated

• CP can apply even when the claim wasnt actually
  litigated in the 1st suit (thats its key
  purpose!)
• IP cant apply if issue wasnt actually
  litigated
• A judgment entered as sanction is on the merits
  for CP (Gargallo), but does it mean that merits
  were not actually litigated for IP? Courts
  split.
• IP cant apply even the issue was litigated if
  determination of issue was not essential to prior
  litigation.

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Actually Determined? Parks 688

• BJ injured when car driven by J is hit by train.
  
• 1st suit B sues for PI J sues for loss of
  consortium. RR pleads contrib. General verdict
  B wins, J loses.
• 2nd suit J sues same RR for his PI.
• Court rejects CP b/c Js Js claim for personal
  injuries is not same claim as he made in 1st
  suit.
• His claim in 2d suit that he was injured is not
  the same claim as his claim in 1st suit for loss
  of consortium because she was injured.

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Parks IP (688)

• Court finds IP implicated because trial of 2d
  suit would put in issue facts determined in 1st
  suit.
• General Verdict RR asserted contrib jury
  verdict for defendant.
• Questions which issues were determined were
  they essential to first jurys decision?

• Because no special verdict, must look to
  complete record to see what was actually
  decided
• RR admits that the fact that B won 1st case
  means
• RR was negligent in car wreck
• If J was damaged for loss of consortium, it was
  because RR injured B and
• Because jury gave J nothing, either (a) J had no
  damages or (b) J was contributorily negligent.
• RR says reason jury awarded nothing had to be b/c
  it found contrib b/c it was uncontroverted J had
  some damages.

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Parks Contrib Not Actually Determined

• Holding?
• Why?
• Why such insistence on being sure the issue had
  to have been actually decided?
• What is the consequence at trial on remand?

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Hypo

• A sues B for accident. State has no compulsory
  counterclaim rule. B pleads contributory
  negligence as affirmative defense. Jury gives
  general verdict for B. B then sues A for
  damages. What issues are precluded?

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Default Sanctions

• If 1st judgment is default?

• If 1st judgment is sanctions
• Gargallo
• FDIC (691)

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(3) Essential?

• Normally straightforward if issue wasnt
  essential for first judgment, IP doesnt apply to
  that issue.
• Did the fact or issue have to be established for
  the first judgment to have been entered?
• If two separate independent findings support the
  1st judgment, do you give preclusive effect to
  both?
• E.g., 1st court dismisses for lack of SMJ and
  lack of PJ. Plaintiff refiles in states state
  courts. Can defendant argue issue preclusion
  prevents 2d court from finding it has PJ?
• 1st Restatement ________
• 2d Restatement ________

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Problems 693-94

• 1
• 2
• 3
• 4
• 5

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(4) Final Judgment

• Same rules we saw for CP apply to IP. See Slide
  5 from Friday.

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Who Can Use IP?

• Old Rule
• If both parties couldnt use IP, neither could.
• Doctrine of Mutuality

• New Rules
• A party gets one chance to litigate an issue.
• So if party, or in privity with (narrow) a party
  to suit, can be bound.
• Who can assert IP against those who were parties,
  or in privity with parties, to the prior suit is
  a fun issue