Fine-Tuning the Preclusion Doctrine

INTRODUCTION

If law is a mysterious profession, it is partly because lawyers have such a knack for attaching intimidating names to relatively commonsense principles. Names such as “res judicata” and “collateral estoppel,” for example; handles like these are enough to intimidate any client and most lawyers. But once you rub elbows with these related doctrines for a while, they will lose their power to intimidate, and you will recognize them for what they are, essential and sensible tools of the trade.

Although they serve related functions, these two tools are different in character. Res judicata acts like a bludgeon, indiscriminately smashing all efforts of a party to relitigate events that have already been litigated and decided in a prior suit. Collateral estoppel, by contrast, operates like a scalpel, dissecting a lawsuit into its various issues and surgically removing from reconsideration any that have been properly decided in a prior action.

Speaking less metaphorically, res judicata bars Smith from suing Jones for any kind of relief arising from a particular transaction or occurrence if Smith had previously brought an action against Jones based on that transaction or occurrence, and the prior action was decided on the merits. Restatement (Second) of Judgments §24 (1982).[1] Res judicata bars any relitigation of Smith’s rights against Jones based on those events, including not only the claims that Smith did raise the first time around but also any other claims arising out of the same set of facts that Smith could have raised (but did not) in the first action.

Collateral estoppel is more narrowly focused. It only precludes Smith from relitigating issues that were actually litigated and decided in a prior action with Jones. If an issue could have been raised in the first case but was not explicitly raised and decided, collateral estoppel will not bar Smith from litigating that issue in a subsequent action against Jones.