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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

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– If you cheat or help others to cheat, you can be expelled.

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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, proofread

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Study Tools• 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

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 1-411

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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