1. Agenda for 26th Class Administrative Name cards
No classes after today, except review classes
TA-led review class
M 11/ :50, Rm 101
2016 exam. No writing assignment
Review class. M 12/11, 10AM Rm 101
2015 exam. No writing assignment
Prepare questions you want to ask me
Handouts
Slides, 2015 Exam, 2016 Exam
Prof. Klerman office hours for rest of semester
M 11/ PM (today)
M 11/ noon (regular class time), 2-5 (expanded regular office hours)
M 12/11. noon-5 (after review class)
Exam info
Review of Venue & FNC
Res Judicata
Collateral Estoppel

2. Exam In class Tuesday morning, December 12 Multiple choice
Open book, can use calculator
MC Challenges
Take home
Essay or essays
Tuesday afternoon, December 12
Integrity
You must do the exam alone
You cannot share or discuss exam questions with those who take exam later
Cheating has not been a problem at USC Law
If you cheat or help others to cheat, you can be expelled.

3. Exam Advice Read question carefully
Outline answer before starting to write, so well structured
Pay attention to genre
Memo to partner different is different from appellate opinion
Compare 1995 Question 2 model answer to 2013 model answer
Include one or two-paragraph executive summary at the beginning
Summarize key conclusions and reasons for those conclusions
NOT just road map
Use headings to separate issues
Consider putting most important issues first
Make sure you justify your conclusions with reference to facts in the question
Take a break after completing your first draft
Go over one page outline/list of topics & issues to make sure you didn’t miss issues
Re-read the question and go over one-page outline again
Proofread and revise
Take a break
Reread question again, go over one-page outline again, revise again, proofread

4. Introduction to Former Adjudication
2 concepts
Res judicata / claim preclusion
Collateral estoppel / issue preclusion
Res judicata
Cannot litigate same claim several times
Sometimes bars related claim, even if not litigated before
Collateral estoppel
If issue resolved in one case, cannot relitigate that issue in subsequent case
Both doctrines motivated by similar policies
Finality
Save litigation costs
Avoid inconsistent judgments or verdicts

5. 4 Requirements for Res Judicata
Same (or related claim) claim
Federal rule. Claim arising out of the same transaction or occurrence
Even if claim in second suit not actually raised or litigated in first suit
Some state rules may be narrower
E.g. claim in second suit arises out of “same evidence”
Judgment on the Merits
Trial, summary judgment, default judgment
12(b)(6), but not equivalent dismissals in some states courts
NOT dismissal for lack of jurisdiction or venue
Final judgment
Judgment entered on all claims
In federal court, still final if appeal pending; not in some state courts
Same parties
Except judgment against former real property owner bars subsequent owner
Perhaps other exceptions when interests of parties are very closely aligned
But exception narrowed by Taylor v. Sturgell (not assigned)
Res judicata and choice of law
Apply res judicata rules of court which rendered judgment
Fed ct applies IL res judicata rules when deciding whether IL judgment bars federal litigation. Frier

6. Frier v. City of Vandalia
City towed Frier’s cars
Frier sued city in in state court seeking replevin to get cars back
City won
Frier sued city in federal court alleging Due Process violation, because city did not give him a hearing before or after it took his cars
District court found for city on merits
Frier appealed
City: res judicata from prior state court bars this suit
7th Circuit found for city on res judicata
Since 1st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2nd case in federal court
IL rules are narrower than federal rules
“same evidence” rather than “same transaction or occurrence”
Majority and concurrence differ in application
In what court could Frier have brought both his replevin and his due process claims?
Did the city raise res judicata as a defense in the district court? How? Why was that improper? How should the city have raised that defense?
Why was it proper for the Court of Appeals to consider the res judicata defense, given that the district court did not address it and the city did not cross appeal?
Yeazell p. 727 Q1

7. Collateral Estoppel Requirements
1. Same issue
2. Actually litigated. No C.E. if party admitted issue in first suit
3. Actually decided. No C.E. if court resolved case without deciding issue
Can be hard to tell if jury verdict. See Illinois Central v. Parks
4. Necessarily decided / Essential to judgment
If changing result on issue would not change outcome of case, then no C.E.
If court decides negligence case by finding duty, but no negligence
No C.E. on duty
CE would not be fair to defendant, because could not have appealed finding of duty
If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach
Some courts follow Restatement 2nd
C.E. applies neither to “no contract” nor to “no breach”
Court may not have thought carefully about
Plaintiff may have thought appeal futile
Unless issue squarely decided on appeal
Other courts follow 1st Restatement and apply C.E. to both
Like res judicata, apply collateral estoppel rules of court which rendered first judgment

8. Illinois Central v. Parks
Train collision
Suit 1. Bertha and Jessie v. IL Central
Bertha‘s claim. Compensation for injuries
Judgment. 30K
Jessie’s Claim. Loss of services and consortium
Judgment for defendant
Suit 2. Jessie v. IL Central for Jessie’s injuries
No c.e. on contributory negligence, because J for defendants could have been based on two findings
No damages in loss of consortium claim
Contributory negligence by Jessie
So not clear which issue actually decided
So Jessie can relitigate whether he was contributorily negligent
The suit in the first paragraph was actually heard in state court. If the suit in the first paragraph of the opinion had been brought in federal court, would the second suit be barred by res judicata?
If the suit in the first paragraph of the opinion had been brought in state court, but the main suit described in the case was brought in federal court, would the second suit be barred by res judicata.

9. Collateral Estoppel Questions
Yeazell p. 749 Q 2
Ruhrgas.
Fed Court dismissed, citing lack of subject matter J and lack of personal J
Plaintiff refiled in state court
Yeazell p. 751 Qs 3-4 (Note you will want to do the Blackboard Questions first, because they give you the answers to Qs 1 & 2)

10. Nonmutual Collateral Estoppel I
Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata)
Some courts allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied)
Called nonmutual collateral estoppel
2 kinds of nonmutual collateral estoppel
Defensive
Offensive
Defensive nonmutual collateral estoppel
Plaintiff sues defendant1 for patent infringement
Court decides that patent is invalid
Plaintiff sues defendant2 for patent infringement
Defendant2 can assert collateral estoppel against plaintiff
Because plaintiff already litigated and lost on issue of patent validity
Now accepted in nearly all jurisdictions
“defensive” means asserted by defendant

11. Nonmutual Collateral Estoppel II
Offensive nonmutual collateral estoppel
Plaintiff1 sues defendant for poisoning water
Court decides that defendant poisoned the water
Plaintiff2 sues defendant for poisoning the water
Defendant may be estopped from arguing that did not poison the water
Very controversial
If defendant loses one case (1st or 2nd or 99th case), would mean that defendant loses all subsequent related cases
But if one plaintiff loses case, then later plaintiffs not bound by c.e
Discourages joinder
Defendant may not have had incentive to litigate hard in first case
Federal courts have discretion to apply c.e. offensively.
Factors from Parklane
Has there been inconsistent litigation outcomes?
Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel
Did defendant have sufficient incentive to litigate issue aggressively in first case
“Offensive” means by plaintiff
No estoppel if person against whom estoppel asserted was not a party in first case
Yeazell pp. 759ff Qs 1, 2a&b, 5a&b