Civil Dispute Resolution &

Procedures II Class 16

Rocking Res Judicata!

 New Trial—Fed.R.Civ.P. 59
• Thanks, rulemakers, for some very vague language:

• “(a) In General.
• (1) Grounds for New Trial. The court may, on motion, grant a new
trial on all or some of the issues—and to any party—as follows:
• (A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court; or
• (B) after a nonjury trial, for any reason for which a rehearing has
heretofore been granted in a suit in equity in federal court”
So, when do judges grant new trials?
• No trial is perfect! Lots of decisions about what evidence to
admit, what arguments to allow, what juries are allowed and not
allowed to do. Some errors are inevitable.
• Continuum between harmless error (error didn’t make a
difference in outcome) vs. reversible error (error made all the
difference).
• In between those two poles, judge has lots of discretion.
• Note: new trial decisions are virtually unreviewable in most
cases. If judge DENIES new trial motion, appellate court will
review only for abuse of discretion. If judge GRANTS new trial
motion, typically there is no appeal until after the 2 nd trial
happens, at which point the issues leading to the new trial are
usually moot.
 Most common reasons for new trials:

• Procedural error that is not harmless:

evidentiary problems, arguments gone awry,
juror misbehavior
• Verdict against the “great weight of the
evidence”
• Compare to JML: what’s the difference?
 Judge v. Jury: Discomfort Scale
• Judge agrees with jury: Jury verdict stands
• Judge mildly disagrees with jury; no procedural error: Jury
verdict stands
• Judge strongly disagrees with jury and believes verdict is
against “the great weight of the evidence”: judge orders new
trial
• Judge believes that no rational jury could find for the verdict
winner: judge enters JML
• NOTE: post-verdict JML can only happen if there was a pre-
verdict JML motion!!!
• QUERY: which of these situations implicates 7th amendment
concerns? Which clause of the 7th amendment?
 Conditional new trials: Controlling Juries’
Decisions on Money!

• Remittitur: Judge gives plaintiff a choice: take a

reduction in damages you get (from what the
jury awarded) or face a new trial.
• Additur: Judge gives defendant a choice: take
an addition to damages you must pay (from
what the jury awarded) or face a new trial.
• In federal court, ONLY REMITTITUR is allowed.
Additur is thought to violate the 7th amendment.
Why?
Res Judicata: Let’s start with policy
• Why do we care about finality in litigation?
– Efficiency
– Avoiding harassment
– Avoiding inconsistent judgments
• So this is all about PRECLUSION—that is precluding parties in later
cases from litigating claims or issues
• A preliminary, but important point emanating from your favorite case!
Which is . . .
• Pennoyer v. Neff! You cannot be bound by a judgment unless you’ve
had a chance to have your day in court!
• Why not? DUE PROCESS!!!
• Additional policy for issue preclusion: don’t want to export an error!
 Some terminology
• Res Judicata: an umbrella term
– Courts (and lawyers!) will sometimes use it generically
to refer to all types of preclusion – as in “That’s res
judicata!”
– But also specifically refers to what we more modern
types call “claim preclusion”
• Collateral estoppel: older term
– Refers to “estopping” a party in a “collateral”
(separate) case from relitigating a particular issue
– We modern types call this “issue preclusion”
Distinguishing claim from issue preclusion
• Claim preclusion:
– Imagine you and I are involved in a scuffle.
– CASE 1: I sue you, alleging that you negligently hit me in the eye.
I win, but only get $500. Hmmm, I think. Perhaps if I can show
you intentionally battered me in the same incident, I could get
punitive damages!
– CASE 2: I sue you again, this time alleging intentional battery.
– NOTE: I’m suing about the same factual incident. I’ve just
switched legal theories.
– Claim preclusion will prevent me from pursuing CASE 2. The
court will say: all claims that I have against you arising out of that
scuffle MERGED into my prior judgment.
– NOTE: If I had lost CASE 1, I’m still claim precluded from bringing
CASE 2. Court will say all my claims are BARRED by CASE 1.
 Compare Issue Preclusion
• Suppose in Case 1, in which I win on a negligence claim
against you based on the scuffle, the court makes a
finding of fact that you are a trained pugilist.
• Case 2 is brought by another person who was present
and injured during the scuffle. The same issue comes
up in that case.
• Issue preclusion MAY bind you in that later case to the
finding that you are a trained pugilist.
• In other words, that fact will be treated as true for
Case 2. No dispute about it. No litigating it.
 PRECLUSION: A General Outline
• Claim Preclusion: Need all 3 elements:
1. There must be a prior judgment that is final, valid, and on
the merits (meaning the substantive case was decided—
or dismissed as punishment for non-cooperation)
2. The parties who are opponents in the later case must
have been opponents in the earlier case (or in privity).
3. The claim in the later case must be within the scope of
the judgment in the earlier case.
• How to tell? Our old friend . . . TRANSACTION/CNOF TEST!!!
• Remind you of anything???
• Note that claim preclusion bars claims that could have been but were
not brought up in previous case.
• ”USE IT OR LOSE IT!”
 GENERAL OUTLINE, cont’d.
2. Issue Preclusion: need all 3 elements
“Been there, done that!!!”
– There must be a prior judgment that is final and valid (and on the
merits, if issue goes to the merits)
– Issue in later case must be the SAME as issue in earlier case, and must
have been
• Actually litigated in prior case
• Actually decided in prior case
• Necessary to the judgment in prior case
– Party to be precluded in later case must have had their day in court in
earlier case. NOTE: that means that ONLY a repeat player can be
precluded! Also NOTE that issue preclusion ONLY precludes issues
that actually were litigated—not those that could have been but were
not.
 The Plan
Monday, March 16:
Midterm—1 hour, closed book
10 multiple choice questions for 30 points;
1 essay with subparts for 30 points
You’ll need your exam number.

Wednesday, March 18: More fun with Res Judicata!

pp. 703-712; 720-732

Future Quiz Dates: March 25, April 6, April 29