Civil Procedure Multistate Bar Practice Exam

What factor must be evaluated to determine fairness in nonmutual offensive issue preclusion?

1. Availability of new evidence for case 1

2. If parties had equal resources during case 1

3. The party to be bound had strong incentive to litigate case 1

4. If the judge was biased in case 1

The correct answer is: The party to be bound had strong incentive to litigate case 1

To determine fairness in nonmutual offensive issue preclusion, a key factor is whether the party to be bound had a strong incentive to litigate in the first case. This concept relates to the idea that for issue preclusion to be fair and just, the party against whom preclusion is applied must have had a genuine opportunity or motivation to fully litigate the issue in the earlier case. When a party has a strong incentive to litigate, it suggests that they were likely to have invested the necessary resources and attention to challenge and dispute the issue at hand thoroughly. This ensures that the prior judgment reflects a fair and informed decision-making process, minimizing the risk that the party was not adequately represented or did not fully engage with the specifics of the case. While factors such as the availability of new evidence, the equality of resources, or potential bias in the previous judge may impact the dynamics of a case, they do not directly address the fundamental fairness that arises from the incentive to litigate. It is the motivation and engagement in the prior litigation that weighs heavily in evaluating whether it is appropriate to apply issue preclusion in a nonmutual context.