1. 1 Agenda for 35th Class Supp J problems (continued) Introduction to Collateral Estoppel Res Judicata Assignments for next classCollateral Estoppel –Yeazell 749-67 –Questions to think about Yeazell p. 750 Qs 1-3 Yeazell p. 753 Q 2 Yeazell p. 756 Qs 1-4 Yeazell pp. 708ff Qs 1c, 2a&b, 5a&b –Optional. Glannon Chapters 28 and 29

2. 2 Collateral Estoppel Bars religitation of issue –Contrast to res judicata, which bars relitigation of claims Often called issue preclusion Policies similar to res judiciata –Save time and money –Prevent inconsistent outcomes

3. 3 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 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 2 nd –C.E. applies neither to no contract nor to no breach »Court may not have thought carefully about »Plaintiff may have thought appeal futile Other courts follow 1 st Restatement and apply C.E. to both

4. 4 Nonmutual Collateral Estoppel I Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) Some court 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 colleral 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

5. 5 Nonmutual Collateral Estoppel II Offensive nonmutual collateral estoppel –Plaintiff1 sues defendant for defective dam –Court decides that defendants dam was defective –Plaintiff2 sues defendant for defective dam –Defendant may be estopped from arguing that dam not defective –Very controversial If defendant loses one case (1 st or 2 nd or 99 th 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: 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

6. 6 Res Judicata Frier v City of Vindalia –City towed Friers 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 7 th Circuit found for city on res judicata –Note that city defended appeal on grounds that raised, but lost in district court –Since 1 st judgment was rendered by IL court, need to apply IL rules for res judicata, even though 2 nd 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 P. 727 Q1