first-year law review

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Nov. 28 Civil Procedure: Collateral Estoppel

                Another part of res judicata is collateral estoppel, or issue preclusion. The elements of collateral estoppel are identical issues, the issue was actually litigated and decided, there was a full and fair opportunity for litigation, and the issue must have been necessary to support a valid and final judgment on the merits. In Levy v. Kosher Overseers of America illustrates the “identical issues” requirement. There, both the plaintiff and defendant used similar kosher markings. The United States Patent and Trademark Office had decided that KOA couldn’t get a trademark because it was too similar to Levy’s. KOA, however, kept using the mark and Levy sued under the Lanham Act. Levy said that KOA couldn’t argue that the marks were different because that had already been decided by the USPTO. The court held, however, that the standards for “likelihood of confusion” used by the USPTO and under the Lanham Act were different which meant that the issues would be different as well. It seems initially like the two would be the same, but something that helps is to ask which questions of law or fact have to be decided. If the standards are different, so are the questions.

                Now let’s consider a fair opportunity to litigate. In Jacobs v. CBS Broadcasting there was a dispute over if Jacobs should get credit for writing a television show. He participated in an administrative proceeding to decide if he should get credit and it was decided that he shouldn’t; so he sued. CBS tried to say the issue couldn’t be reargued because the proceeding’s judgment was sufficient for collateral estoppel purposes. The court disagreed, however. The court held that arbitration is sufficiently adjudicatory if the following factors are met: it’s conducted in a judicial-like adversary proceeding, witnesses testify under oath, involved the adjudicatory application of rules to a single set of facts, conducted before an impartial hearing officer, parties had the right to subpoena witnesses and present documentary evidence, and a verbatim record was maintained. The proceeding didn’t have these elements so there wasn’t a fair opportunity to litigate. Thus, any proceeding needs to have those criteria to be sufficient for collateral estoppel purposes.


November 28, 2006 Posted by | Civil Procedure | Leave a comment

Nov. 11 Civil Procedure: Res Judicata

I’m going to skip going over the different rules for now. I may come back to that later. So I’m moving on to res judicata. That’s a term that means “thing adjudicated.” In the broad sense, it refers to the finality of judgments and covers claim preclusion (also known as res judicata) and issue preclusion (known as collateral estoppel). We’ll tackle claim preclusion first and collateral estoppel later. Thus, when I use the term “res judicata” for the rest of this post, I’m referring to claim preclusion. 

The doctrine of res judicata is a very important one which the Supreme Court has affirmed several times. In Federated Department Stores v. Moitie, the Court struck down a Ninth Circuit attempt to create an exception to the doctrine. The litigation path of Moitie is pretty convoluted. In essence, the government brought a suit for price fixing and seven plaintiffs filed a suit similar to the government’s. Those suits were dismissed. Two of those plaintiffs, Moitie and Brown, decided not to appeal with the other plaintiffs, but rather to file new litigation. The new suit was still very similar to the government’s complaint, but the attorney tried to couch it in terms of state law instead of federal law. When Moitie II (as it’s known now) reached the Ninth Circuit, the court acknowledged that under a strict interpretation res judicata, Moitie II’s claim would be barred. The wrinkle is that during after Moitie II was filed, the reason the for the original litigation’s dismissal was overturned and the other five plaintiffs won on appeal. The Ninth Circuit thought it would be just and in line with public policy to allow an exception to res judicata because it wouldn’t be fair for Moitie and Brown to not recover when the other plaintiffs did. The Supreme Court, however, wasn’t happy with that decision and held that the res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. So res judicata is a pretty strong and important doctrine that litigators need to always be aware of.

There are three elements for claim preclusion to come into effect. The first is that you need a judgment on the merits, the claim has to involve the same parties, and it has to involve the same transactions or series of transaction. The first two criteria are pretty clear, but the third isn’t. In Hermann v. Cencom Cable Assn., Judge Posner said that the Restatement definition of a transaction as a pragmatic trial unit (I’m paraphrasing here) isn’t helpful enough. The court ruled that two claims are one for the purposes of res judicata if they are based on the same or nearly the same factual allegations. This is a much more definitive rule that makes it easier to determine to what res judicata would apply and minimize mistakes by attorneys.

November 11, 2006 Posted by | Civil Procedure | Leave a comment

Civil Procedure: Ethical Constraints on Pleading

Let’s talkabout the ethical constraints on pleading. We’ve looked at three cases and I’ll just share their holdings before getting into a nice overview of Rule 11.

 The first case is McCormick v. Kopmann in which the court held that a party can state two or more statements, regardless of consistency, in the alternative or hypothetical when the party is in doubt. A bad alternative doesn’t affect a good one. Alternative fact allegations made in good faith and based on genuine doubt aren’t admissions against interest so as to be admissible in evidence against the pleader.

 The next case is Business Guides v. Chromatic Communications Enterprises in which the court held that the standard of conduct under Rule 11 is one of objective reasonableness which includes conducting a reasonable inquiry (more on this later).

 The final case is Moore v. Keegan Management Co. Here, the court held that sanctions must be imposed on the signer of a paper that is frivolous, meaning a filing that’s both baseless and made without a reasonable and competent inquiry.

 Having looked at these holdings, we can look at Rule 11. There are three parts to Rule 11. Part (a) says that every pleading, motion, and paper has to be signed. Part (b) requires certification that the document was prepared after reasonable inquiry and to the best of the signer’s knowledge. Part (b) has three subparts: 1) the document isn’t for improper purposes, 2) non-frivolous, 3) the legal contentions have adequate support, and 4) the factual contentions have adequate support. The final part, Part (c) says that if a document not meeting (a) or (b) isn’t withdrawn 21 days after service, the court may impose sanctions. Since Part (a) is pretty straight-forward, let’s look at Part (b), the guts of the rule.

 Certification after the inquiry is to be reasonable under the circumstances. Those circumstances include time expediency, the track record with the client, red flags, etc. An example of time expedience is in Business Guides. There, the client wanted a temporary restraining order which means time was of the essence. The court was forgiving of errors made that early in the game, but not so much when errors persisted. Now, there is a split of authority on whether a reasonable inquiry is an independent requirement. The Moore majority said that a reasonable inquiry isn’t an independent standard. That means that I can take a shot in the dark with a claim and if it happens to be on the mark, I wouldn’t be sanctioned.

 Subpart 1 says that the document isn’t for an improper purpose. Such purposes include harassment of opponents, multiplying litigation costs, and publicity and media attention. Subpart 2 says that the document can’t be frivolous. Factors in determining whether a document is frivolous include the plain language of the governing law, prominence, number and date of decisions on point, level of support in those decisions, etc. For Subparts (3) and (4) the reasonable inquiry will dictate the basis of allegations and denials. If you’re not sure of things, you need to use the alternative or “likely to have” language because those standards are applicable only if the issue is expressly designated as such.

 In Part (c), the rule gives us a 21 day grace period to change or withdraw the document. The goal is to reduce satellite litigation. Further, it’s important to notice that there’s a sua sponte exception which means the court can, on its own accord, impose sanctions when it wants. The sanction is limited to what is sufficient to deter the behavior. The standard sanction is the award of reasonable attorney fees, but fines or non-monetary sanctions are also available.

November 8, 2006 Posted by | Civil Procedure | Leave a comment

Nov. 2 Civil Procedure: Pleadings

So let’s look at the rules we’ve learned so far. First, there’s FRCP 8(a) which requires a short and plain statement of grounds for jurisdiction, a short and plain statement of claim showing the pleader is entitled to relief, and the demand for judgment and relief. The short and plain statement is best illustrated using Form 9 in the FRCP. There are different approaches to use depending on the judge. You can plead general allegations re circumstances giving rise to the claim, circumstances and all the prima facie elements, or facts with enough specificity to enable the parties to determine the preclusive effect of judgment. What you would do depends on the judge and the strategy that you’re using. Maybe you don’t want to plead a lot of facts so you don’t tip your hand or so you can have a broad discovery phase. Or maybe you plead a lot of facts so you can get a quick settlement. You can do anything you want really as long as you meet the minimum requirements of 8(a).


Then there’s FRCP 12(b)(6) which says the failure to state a claim is a defense. If the claim isn’t legally sufficient or factually sufficient, there’s no claim. Legal sufficiency is assuming the truth of the allegations and reasonable inferences, does substantive law recognize the claim. Factual sufficiency is if the factual detail in the complaint is sufficient. If you’re in a code pleading jurisdiction, you have to plead facts constituting a cause of action. If in a notice pleading jurisdiction, you have to follow the FRCP guidelines.


12(e) says you can move for a more complete statement. It essentially says that the plaintiff hasn’t pleaded enough information (either facts are missing or ambiguous) for the defense to state a position.


FRCP 11 is something we’ve just started to review. We talked about McCormick v. Kopmann in which the plaintiff pled two counts that were mutually exclusive. Under Rule 11(b) you can plead alternative, conflicting claims as long as you don’t violate the rule. Under Rule 11(b)(3) you can represent something to the court on a good-faith basis and has or is likely to have evidentiary support. If you honestly don’t know the cause of something but have two theories, you can plead them both as long as one is stated in the alternative or as a hypothetical.

November 3, 2006 Posted by | Civil Procedure | Leave a comment

Oct. 31-Nov. 1 Civil Procedure: Pleadings

So there are two types of pleadings: notice pleading and fact pleading. Fact pleading is where the pleading sets forth the facts of the case. Notice pleading is giving a brief statement of the issue and why the plaintiff is seeking relief. Notice pleading is useful so that a pleader can get more relevant facts in discovery, and it makes the court more efficient. FRCP 8(a)(2) says that you need a short and plain statement of the claim showing the pleader is entitles to relief. As an example, we can look at Form 9 in the Appendix. There, the claim is “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” FRCP 12(b)(6) says that the failure to state a claim is a defense. A claim has to have both legal and factual sufficiency. FRCP 12(e) says that you can file a motion for a more complete statement. If the pleading is vague or incomplete, the defense can file a 12(e) motion.

November 2, 2006 Posted by | Civil Procedure | Leave a comment

Oct. 30 Civil Procedure: Pleadings

Civil Procedure

We started talking about pleadings today. Pleadings are governed by FRCP 7(a). A pleading sets forth the facts and the parties’ claims on the facts. Pleadings set the framework of the proceeding and they include the complaint, answer, counterclaim, crossclaim, third-party complaint, and third-party answer. The parts of the pleading identifies the claims, the legal basis for the plaintiff’s claims, and the releif sought. I’ll post more on this later when I get a bit more under my belt.

November 1, 2006 Posted by | Civil Procedure | Leave a comment