Agenda for 26th Class
• Administrative
– Name cards
– Handouts
• Slides
• 2012 Exam
– Prof. Klerman office hours for rest of semester
• W 12/2. 3:30-4:30PM (today)
• Th 12/3. 3:30-4:30PM
• Th 12/10. noon-5PM
– Review class
• Th 12/10 10-noon. Rm 1
– Assignment for Review class
• 2012 Exam
• Prepare questions you want to ask me
• Exam info
• Review of Venue & FNC
• Res Judicata
• Collateral Estoppel
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Exam
• In class
– Friday, December 11, 9-11AM (won’t need 2 hours)
– Multiple choice
– Open book, can use calculator
– MC Challenges
• At your discretion you may (in ExamSoft or on paper), make a written
appeal with respect to any two of the questions that you feel are
ambiguous or unfair. If you make more than two written appeals, I will
ignore all but the first two. If you make a challenge to a question, be sure to
state in your challenge which answer you marked on the computer sheet,
which other answers you think are plausible, and why.
• Take home
– Essay or essays
– Friday, December 11, 1-9PM
– Open book, calculator
• 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
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– If you cheat or help others to cheat, you can be expelled.
Exam Studying Advice
• Study for exam as though it were an in-class, timed exam
– Don’t assume you can learn material during exam
• Outlining
– Do your own
– Benefit is making outline, not having one
– Compare outline to others’ outlines, after you are done
– Create one page mini-outline / list of topics & issues
• Do practice problems
– Glannon
• Don’t’ look at answers until you have tried to figure it out yourself
– Blackboard questions (if haven’t already done)
• Do old exams
– Write out full answers BEFORE looking at model or discussing with others
– Don’t worry about time
– Compare your answer to others’ answers
– Compare your answer to model answer
• Be very critical – sentence by sentence
• Make sure you understand what you missed
• Even best exam misses 50%
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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, proofread4
Study Tools
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Old exams. MyLaw Portal, “Secure Documents”
Glannon
Model answers. MyLaw Portal, “Secure Documents”
Class recordings. MyLaw Portal, “Recorded Classes”
Class slides, www.klerman.com
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Review Venue, Transfer, FNC
• Venue
– Main point is convenience (low litigation costs)
– Statutory, not constitutional
• 1391 is general federal venue statute
• Other federal venue statutes
• State venue statutes
• Can transfer cases within judicial system
– For convenience
• Location of witnesses and evidence
• If case would be more conveniently litigated in different legal system
– Transfer not possible
– Forum non conveniens dismissal
– Change in law or procedure is not usually grounds to retain case
where witnesses and evidence are elsewhere
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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
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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
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Frier v. City of Vindalia
• 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 res judicata issue
• Note that city defended appeal on grounds that raised, but lost in
district court
– 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
• Yeazell p. 727 Q1
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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
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Collateral Estoppel Questions
• Illinois Central v Parks
– Train collision
– Suit 1. 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
• Yeazell p. 753 Qs 1-3
• Yeazell p. 753 Q 2
• Ruhrgas.
– Fed Court dismissed, citing lack of subject matter J and lack of personal J
– Plaintiff refiled in state court
• Yeazell p. 756 Qs 1-4
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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 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
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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. 764ff Qs 1c, 2a&b, 5a&b
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