Standards of review on appeal
● Review of questions of law
○ Reviewed de novo
■ no deference given to trial judge on questions of law
● Questions of fact in a bench trial (non-jury trial)
○ “Clearly erroneous” standard used for judge’s determinations of fact
● Question of fact in a jury trial
○ Jury’s finding of fact will be affirmed unless reasonable people could not have
made the finding
■ Deferential standard
● Review of discretionary matters
○ Judge’s rulings on discretionary matters reviewed under an abuse of
discretion standard
■ Deferential standard
● Harmless error
○ No reversal is required if the error is harmless
■ It did not affect the outcome of the case
Claim and issue preclusion
= preclusive effect of a prior judgment on the merits.
= whether judgment in case 1 (already entered) stops litigation of any matter in another case
(Case 2)
● Applicable law to preclusion:
If case 1 and case 2 are in different judicial system (federal court vs state court / courts in
different US states):
○ the court in case 2 applies the preclusion law of the judicial system that
decided case 1.
● Claim preclusion (res judicata):
○ ALWAYS start with claim preclusion because if it applies, CP results in getting
rid of case 2.
○ If you can’t get it, then we go to issue preclusion= will not dismiss the case
but will streamline how many things we have to litigate in that case.
Requirements:
1) Same P vs same D
2) Case 1 must have ended: valid final judgment on merits
■ Unless the court said that the judgment is without prejudice, any
judgment at all is deemed on the merits unless based on:
● lack of jurisdiction (either personal or subject matter),
● improper venue, or
● failure to join an indispensable party
3) Same claim
■ Majority view: same transaction or occurrence
■ Minority “primary rights” view: separate claims for personal injury and
property damage
Compulsory counterclaim rule: Not claim preclusion but gets the case dismissed because
should not have been raised.
● Issue preclusion (collateral estoppel)
= narrower tha claim preclusion
○ prevents a person from relitigating an issue
Requirements:
1) Case 1 ended in valid, final judgment on the merits
○ Same requirement for claim preclusion
2) Same issue actually litigated and determined in Case 1
○ The issue must actually have been litigated in Case 1
3) Issue was essential in Case 1
○ Essential to the judgment= the finding on the issue is the basis for the
judgment.
4) due process factor: Against
○ Issue preclusion can be used only against previous party
■ was a party in case 1 or
■ in privity with a party= A party to case 1 represented someone who
was not a party to Case 1.
● Example: class action. The result of that case binds all class
members even if they were not parties to the case.
5) By whom is preclusion used? (Mutuality rules)
○ Can be used by
■ party in case 1 OR
■ in privity with a party
○ Nonmutual issue preclusion can come up in two ways:
■ Defensive nonmutual issue preclusion
● The person asserting preclusion:
○ was not a party to case 1
AND
○ is the defendant in case 2
= Federal law and most states say that nonmutual defensive is OK as long as
the party against whom we are asserting it had full chance to litigate in Case
1 (had his day in court).
■ Offensive nonmutual issue preclusion
● Person asserting preclusion to support claim:
○ was not party to case 1
AND
○ is the plaintiff in case 1
=Most states would probably say NO!
But there is a clear trend,and this includes federal law.
Federal preclusion law DOES allow this, and some states do as well if it
would be FAIR!!!
● Fairness factors:
○ The party to be bound had a full and fair opportunity to
litigate in Case 1 (true in nonmutual defensive as well)
○ The party to be bound had a strong incentive to litigate in
Case 1
○ The party asserting issue preclusion could have easily
joined to Case 1
○ There have been no inconsistent findings on the issue.
Genre if there have been multiple cases about the issue and
sometimes it was in favor and sometimes it was not= it would
be unfair to let you get preclusion on the finding regarding that
issue.
