In Pro Per
Collateral Estoppel

Issue Preclusion

Collateral Estoppel
I. Elements
A. Same Issue
B. Actually Litigated
C. Actually Decided
D. Necessary to the Outcome of the TrialII. AKA Issue Preclusion
A. Mutual
1. Same Parties
B. Nonmutual
1. One Party Different
a. Defensivei. Cases:
Bernhard v. Bank of America (Case Law)
Blonder-Tongue v. University of Illinois Foundation (Case Law)

b. Offensive
ii. Case:Defensive NonMutual Collateral EstoppelThis is where common sense helps you.

Basically, it's the defendant saying to the plaintiff, "Look, you big dumbie, you pulled the exact same garbage on someone else and lost, so, don't go there with me."

Offensive Nonmutual Collateral Estoppel
This is where common sense doesn't help you, well not as much anyway.
But, none-the-less, let's see if we can make sense out of what to look for in the fact pattern. Ask yourself, "Self, do I have any of the following at play here?"

1. Did the plaintiff in the first trial just sit back and wait for the verdict before taking his shot in the second trial?

2. Did the defendant in the first trial aggressively litigate in anticipation of further suits?

3. Were there procedural limitations placed on the defendant in the first case that hindered his or her litigation?

4. Were there any other cases based on this issue, which may provide inconsistent judgments?

So what do you do with the answers? Basically, it comes down to determining whether the defendant got a good solid bite of the apple in the first trial.

For if, there are any doubts about whether the defendant was able to fight the good fight over the issue in the first trial, he or she should not have the judgment used against him or her again.

Okay, that's the basics. The real brain busters are in Glannon, but be warned you should wear a waterproof helmet when reading Glannon, it'll keep the gray matter off the drapes when your noggin explodes.

The Shield
Your basic run of the mill collateral estoppel is used either offensively (sword) or defensively (shield), but as any good Renaissance Fair aficionado knows, you often need both, for knowing how to use one is not much good without using the other.

Pure Defensive

P1 sues D and D wins by knocking out one element of P's case.

P2 comes along and tries to sue D for the same dang thing, and D asserts collateral estoppel to knock out the same element of the claim.
This is the one courts like.

Pure Offensive

P sues D1 and wins.

P then sues D2 for the same dang thing, and P asserts collateral estoppel to make D2 lose.

Courts don't like this one, as D2 probably didn't get a real chance to rock 'n roll.

The Offensive-Defensive Mixture

P sues D1 for negligence and D1 asserts the affirmative defense of contributory negligence. The court finds that D1 was indeed negligent, but that P was negligent as well (contributorily, so to speak). Notice how D1 didn't knock out an element of P's claim but asserted an affirmative defense.

Here's the tricky part...

P sues D2 for negligence from the same dang event, and D2 asserts the affirmative defense of contributory negligence, but D2 doesn't have to litigate the whole mess of P's contributory negligence again because D1 established it in his trial. So, although D2 is a defendant and defending himself, he is using collateral estoppel both defensively and offensively.

See Res Judicata

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