Verdicts, Judgments, and Preclusion

Question 1

Number of Jurors

Answer 1

A jury must begin with at least six and no more than 12 members, and each juror must participate in the verdict unless excused.

Question 2

Unanimity of Verdicts

Answer 2

Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members.

Question 3

Effects of Verdicts (Claim and Issue Preclusion)

Answer 3

Generally, once a case has reached a final judgment, then that case, and related claims and issues, have been decided or settled permanently and are not eligible for relitigation.

Question 4

Claim Preclusion (Res Judicata)

Answer 4

Prevents relitigation of a claim or all claims:

• between the same parties and those who are in privity with them; and
• arising out of the same transaction or occurrence; and
• that were determined on the merits by a court with proper SM and personal jurisdiction.

Question 5

Does Dismissal With Prejudice Have Preclusive Effect?

Answer 5

Yes. A dismissal with prejudice operates a judgment on the merits.

Question 6

Claim Preclusion’s Relationship to the Compulsory Counterclaim Rule

Answer 6

If the D fails to bring a compulsory counterclaim in the first suit, they are precluded from filing it as a P in a later suit.

Question 7

Waiver of Claim Preclusion

Answer 7

Remember that claim preclusion operates as an affirmative defense that is waived if not properly asserted

Question 8

Issue Preclusion (Collateral Estoppel)

Answer 8

Prevents relitigation of issues that were fully and fairly litigated, and were necessarily decided in a proceeding that reached a final judgment on the merits.

Question 9

Elements of Issue Preclusion

Answer 9

• The issue must have been litigated and determined in the prior suit
• The issue must have been essential to the judgment (if decided the opposite way it would have changed the result of the case).
• The prior suit must have ended in a judgment on the merits
• The party against whom preclusion is asserted must have had a full and fair opportunity, as well as incentive to litigate the issue in the first suit.

Question 10

Issue Preclusion: Who is Subject to the Defense?

Answer 10

Issue preclusion may not be used against someone who was not a party to the previous action.

Question 11

Issue Preclusion: Who May Assert the Defense?

Answer 11

As long as it is asserted against one who was a party in the earlier suit, issue preclusion may be used offensively by anyone (even one who was not a party to the first action).

Question 12

Offensive v. Defensive Issue Preclusion

Answer 12

• Defensive issue preclusion- is raised in defense to a claim (e.g. one should not have to pay because the issue was already stated)
• Offensive issue preclusion- is raised by a P asserting a claim (e.g. the issue has been decided, therefore, the P should receive money)

Question 13

Extra Req. for Offensive Issue Preclusion

Answer 13

Court will permit it if the D had a significant incentive to litigate the issues in the first suit:

-if the D could not have reasonably known that other Ps would be waiting in the wings to piggyback on the first Ps successful verdict, the court will find that the D did not have an incentive to vigorously defend itself, and thus will refuse to apply the rules of preclusion.