Civil Procedure Multistate Bar Practice Exam

When can a party assert nonmutual offensive issue preclusion?

1. Only if they were a party in case 1

2. When they are a defendant in case 2

3. If they were not a party to case 1 and are the plaintiff in case 2

4. Only in state-level cases

The correct answer is: If they were not a party to case 1 and are the plaintiff in case 2

Nonmutual offensive issue preclusion allows a party who was not involved in the prior case (case 1) to assert a favorable finding from that case in a subsequent case (case 2). This is particularly applicable when that party is the plaintiff in case 2. In this context, the rationale is that if a factual issue was conclusively resolved in case 1 in favor of the party who will now benefit from that determination in case 2, then it is fair to allow that use of the prior judgment. This helps to promote judicial efficiency and prevent inconsistent verdicts regarding the same issues. The requirement is that there must have been a full and fair opportunity for the party against whom preclusion is sought to litigate the issue in the first case. Furthermore, the two cases need to involve the same issue that was actually litigated and decided in case 1. Other choices have limitations or incorrect assumptions: - Claiming that nonmutual offensive issue preclusion can only be asserted if a party was in case 1 is inaccurate since this doctrine specifically serves parties who were not part of that original case. - Suggesting that it can only occur when the party is a defendant in case 2 overlooks the primary quality of non