Collateral Estoppel - Strategy

Strategy

Collateral estoppel may be used either defensively or offensively; mutually or non-mutually:

• Defensive Mutual Collateral Estoppel
  • Used against the plaintiff from the first suit regarding issue(s) that were previously litigated against the defendant from the first suit.
• Defensive Non-Mutual Collateral Estoppel
  • Used by a new defendant in a subsequent suit who wants to assert a final judgment on an issue(s) against the plaintiff from the first suit
• Offensive Mutual Collateral Estoppel
  • Used against the defendant from the first suit by the plaintiff (from the first suit) in a subsequent suit thereby preventing relitigation on an issue already decided
• Offensive Non-Mutual Collateral Estoppel
  • Used by a new plaintiff in a subsequent suit who wants to assert a final judgment on an issue(s) against the defendant from the first suit
  • Court employs 4 "Fairness Factors" from Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979), to determine validity of the Offensive Non-Mutual Collateral Estoppel:
    1. Could the party trying to assert Collateral Estoppel have intervened in the earlier suit?
    2. Did defendant have incentive to litigate the first action?
    3. Are there multiple, prior inconsistent judgments?
    4. Are there any procedural opportunities available to defendant in the second suit that were not available in the first suit?

Collateral estoppel may be avoided as a defense if the claimant did not have a full and fair opportunity to litigate the issue decided by a state court, which means he may file suit in federal court to challenge the adequacy of state procedures. Note that in this case the plaintiff's suit would be v. the state, not v. the other party in the prior suit.

In the U.S., the doctrine of offensive non-mutual collateral estoppel does not extend to the U.S. government; it is limited to private litigants.