Civil Procedure Multistate Bar Practice Exam

What fairness factor is considered in nonmutual offensive issue preclusion regarding the party asserting it?

1. Whether they were represented by an attorney

2. If they could easily have joined case 1

3. Whether they had prior business with the other party

4. Whether they had an existing judgment against them

The correct answer is: If they could easily have joined case 1

In the context of nonmutual offensive issue preclusion, the fairness factor concerning the party asserting it primarily involves whether that party could have easily joined the earlier case in which the issue was decided. This factor is significant because it addresses concerns about strategic behavior. If a party could have participated in the first case but chose not to, it raises questions about fairness in allowing them to leverage the judgment from that case in subsequent litigation. The principle behind this is that it ensures parties take responsibility for their claims and do not engage in gamesmanship by selectively choosing when to litigate. The other options, while they may touch upon issues of fairness, do not directly relate to the established factors courts consider in nonmutual offensive issue preclusion. For instance, representation by an attorney, existing judgments, or prior business interactions could play roles in general litigation but aren’t determinative factors in deciding whether nonmutual offensive preclusion should apply. The core concern remains whether the asserting party had a fair opportunity to join the initial litigation where the issue was litigated and decided.