The Limits of Procedural Liberality

INTRODUCTION

Perhaps you are thoroughly tired of hearing how reasonable the Federal Rules of Civil Procedure are. Certainly, one of the recurrent themes of the Rules is to create a flexible procedural system in order to prevent procedure from dominating substance, to assure that the merits of the parties’ claims, not procedural missteps, determine the outcome of lawsuits.

For example, parties are given broad power to join claims and parties in a single suit. Fed. R. Civ. P. 13, 14, 18, 20, 24. They are given the latitude to plead all their possible claims against opposing parties, within the limits of proper pleading. Fed. R. Civ. P. 8(a), 8(d)(2), 11. Pleadings are liberally construed, Fed. R. Civ. P. 8(e); and amendments freely allowed. Fed. R. Civ. P. 15(a). Even if amendments are not offered, the court may treat the pleadings as though they had been amended, when justice so requires, Fed. R. Civ. P. 15(b), and may grant parties the relief to which they are entitled even though they never asked for it. Fed. R. Civ. P. 54(c). If the process still goes awry, despite all these opportunities to correct procedural errors, the court may grant a new trial under Fed. R. Civ. P. 59, or relief from judgment under Fed. R. Civ. P. 60(b).

Given all this procedural liberality, you might expect that the rules governing relitigation of claims would be correspondingly indulgent. However, the exact opposite is true. Once the parties have had a full and fair opportunity to be heard under the flexible rules reviewed above, all this paternalistic indulgence comes to an abrupt halt. Regardless of a party’s reason for wishing to relitigate a dispute, the doctrine of res judicata stands like a brutish, unreflecting myrmidon, guarding the doors of the courthouse.[1] While the Rules are liberal, res judicata (also called “claim preclusion”) is strict and uncharitable. No matter how unfair the result in the first suit may seem or indeed, no matter how unfair it may actually have been, the myrmidon will not step aside.

For example, suppose that the plaintiff in the Schulansky case recovers $7,000 from Ronan for breach of contract. If Schulansky believes that the verdict was too low, she cannot bring a second action against Ronan for more. Or, if she discovers a statute that allows a more generous measure of damages, she cannot bring a new action based on that statute. If Schulansky loses but believes that her lawyer did not litigate the case energetically, she will be barred by res judicata from trying again with a new lawyer.