BarBri Bar Review Hangout - July 2015 Exam Forum

[kyle010723]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

An easy way to remember this:

Res Pina Colada applies to the same party (or through vicarious liability)

Collateral Estoppel may be used by another party that was not in the original suit.

When in doubt, most likely collateral estoppel.

[kyle010723]

just so we're not all confused next week- assuming we get anything related to same sex marriage on either our state essays or mbe, we address it with intermediate scrutiny, despite the fact that last month the SC basically shuffled the issue into the strict scrutiny category (forgive me, I'm not a con law savant). ?

Technically the Supreme Court didn't say what kind of scrutiny they applied for SSM. But I'd go with intermediate and sprinkle in "but last month...."

[Danger Zone]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

An easy way to remember this:

Res Pina Colada applies to the same party (or through vicarious liability)

Collateral Estoppel may be used by another party that was not in the original suit.

When in doubt, most likely collateral estoppel.

You, uh, got post bar plans on your mind, friend?

[Hutz_and_Goodman]

Just wanted to give a shout-out/reminder to a tool that's been helping me drill in areas I need improvement or more confidence on for the MBE subjects.

In Barbri Study-Smart MBE, go to "self-study" mode and then expand the subject matter (ex: Evidence--->Impeachment). You can isolate the exact topic of questions you want to practice. Moreover, you can pick the difficulty (introductory/intermediate/difficult/or all). Going with the lower levels of difficulty in topic areas I've still wanted practice with has helped weed-out some of the "WTF Barbri?" effect of having to deal with really nuanced, hyper-specific questions that are less likely to show up on the test (and confidence killers) while also giving me some practice in the fundamentals of that topic.

Wow I wish I had known this a month ago

+1

[musicfor18]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

Only claim preclusion bars an entire subsequent action (think claim = action). Issue preclusion bars relitigation of specific issues that were litigated and decided in a prior suit.

[zta_themis]

When Barbri assigns the "outline additional essays" in the PSP, does anyone else flip through them and pick out the shortest ones? When ever I see a full-page question I just cringe flip past it.

[Good Guy Gaud]

When Barbri assigns the "outline additional essays" in the PSP, does anyone else flip through them and pick out the shortest ones? When ever I see a full-page question I just cringe flip past it.

I just go to the ones that have dates on them (I think that means they were actually on the exam whereas BarBri made the others up)

[corgibutts18]

When Barbri assigns the "outline additional essays" in the PSP, does anyone else flip through them and pick out the shortest ones? When ever I see a full-page question I just cringe flip past it.

I just go to the ones that have dates on them (I think that means they were actually on the exam whereas BarBri made the others up)

+1

[Bcmurphy42]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

Only claim preclusion bars an entire subsequent action (think claim = action). Issue preclusion bars relitigation of specific issues that were litigated and decided in a prior suit.

I hateeeee issue and claim preclusion questions, because they are always tricky and they sometimes will use the alternate phrases for them (that is, Claim preclusion a.k.a. res judicata or issue preclusion a.k.a. collateral estoppel).

One way to determine whether the subsequent CLAIM will be blocked is to look at the parties, it must be the same claimant v. the same defendant for there to be claim preclusion... Issue preclusion does not have to be the same, but it is tricky because the parties must have had the same interests.

Also, check your state's laws regarding issue preclusion if you have civil procedure on the essay day. Here in Tennessee, we still follow the mutuality rule for only offensive issue preclusion, which means that the parties must be from the same case or controversy to use issue preclusion OFFENSIVELY. But, we allow non-mutual defensive issue preclusion. (Whew, thanks for making it easy, Tennessee!)

[antlp]

Could someone clarify whether and when supp jx is available for intervention? I'm seeing conflicting information between the Freer lecture (yes it's available), CMR (no supp jx over claims by or against those intervening in a diversity action), the text of 1367 itself (no supp jx over claims by those seeking to intervene in a diversity jx) and Wikipedia (.....yes and no?). Anyone have a clear sense of what the deal is with this?

Thanks in advance!

[kykiske]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

[antlp]

How are people remembering the distinction between claim preclusion and issue preclusion? I seem to confuse which doctrine will bar a subsequent action with some regularity.

Bumping this question -- any help appreciated!

Only claim preclusion bars an entire subsequent action (think claim = action). Issue preclusion bars relitigation of specific issues that were litigated and decided in a prior suit.

I hateeeee issue and claim preclusion questions, because they are always tricky and they sometimes will use the alternate phrases for them (that is, Claim preclusion a.k.a. res judicata or issue preclusion a.k.a. collateral estoppel).

One way to determine whether the subsequent CLAIM will be blocked is to look at the parties, it must be the same claimant v. the same defendant for there to be claim preclusion... Issue preclusion does not have to be the same, but it is tricky because the parties must have had the same interests.

Also, check your state's laws regarding issue preclusion if you have civil procedure on the essay day. Here in Tennessee, we still follow the mutuality rule for only offensive issue preclusion, which means that the parties must be from the same case or controversy to use issue preclusion OFFENSIVELY. But, we allow non-mutual defensive issue preclusion. (Whew, thanks for making it easy, Tennessee!)

This is sort of threshold level stuff but in order to remember which "old term" matches with which "modern term" I just remember:

Issue Preclusion = Collateral Estoppel <-- both terms have double letters
Claim Preclusion = Res Judicata <-- both terms do not have double letters

I was getting mixed up when they use the old terms on questions (hate it when they do that) but knew the reqs well (in my head they're matched up with the claim and issue preclusion language) so it was just a terminology issue for me... hope that helps at least a little bit!

[kykiske]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

[charlesxavier]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

If you're decent at legal writing then my advice is: read the assigned task carefully and then read everything else as fast as you possibly can so you can be sure to finish. Not doing the assignment as requested or not finishing are the real point killers.

[murray18]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

I don't think that's unusual. Even if you had done every MPT assignment Barbri gave you, you wouldn't have done much more (besides a couple practice ones). Knock one out on Sunday to figure out if you're going to be good on time and I would think (hope) you'd be fine.

[kykiske]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

If you're decent at legal writing then my advice is: read the assigned task carefully and then read everything else as fast as you possibly can so you can be sure to finish. Not doing the assignment as requested or not finishing are the real point killers.

Do you have to actually be good at legal writing, or merely fake it till you make it?

[kyle010723]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

If you're decent at legal writing then my advice is: read the assigned task carefully and then read everything else as fast as you possibly can so you can be sure to finish. Not doing the assignment as requested or not finishing are the real point killers.

Pro Tip: ExamSoft has alarm/timer for some states, use it to keep track of time.

Now what is the odds of getting an MPT this year where they ask us to draft a will or contract?

[murray18]

Confession #2: I have done very little to prepare for the MPT.

All I've done is prepare "templates" for each type of response and broke down my strategy into minutes (minutes 0-15: read case file, etc.).

If you're decent at legal writing then my advice is: read the assigned task carefully and then read everything else as fast as you possibly can so you can be sure to finish. Not doing the assignment as requested or not finishing are the real point killers.

Also, this. Every muck up I've had on the practice ones stemmed from not reading the assignment memo carefully. In fact, read it twice.

[BearState]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

On claim preclusion, the parties DO need to be identical, don't they? Same P v. same D?

[Good Guy Gaud]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

On claim preclusion, the parties DO need to be identical, don't they? Same P v. same D?

Nope. Privity works. Above example is credited.

If you sue an employee/subsidiary and lose then try to sue the employer/parent-company, they can assert claim preclusion.

[kykiske]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

On claim preclusion, the parties DO need to be identical, don't they? Same P v. same D?

The doctrine of res judicata, also known as claim preclusion, makes a final judgment on the merits binding upon all parties to the action or any party in privity to the parties to the action, such that they cannot bring a second suit based on the same cause of action. A party is considered to be in privity to a prior party when the party to the prior litigation represented the same legal right applied to the same subject matter. See Jefferson School v. Subversive Activities Control Bd., 331 F.2d 76, 83 (D.C. Cir. 1963). Res judicata prevents the parties or their privies from relitigating both the issues that were raised and the issues that could have been raised in the prior litigation.

[kyle010723]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

On claim preclusion, the parties DO need to be identical, don't they? Same P v. same D?

No, but they need to be in relationship (privity). i.e. Principal-Agent, Contract, etc

[BearState]

Also, on the claim preclusion question, keep in mind that the parties between the action need not be identical.

Say Cartman sues Wii-lite, a subsidiary of Nintendo, for intentional infliction of emotional distress for not selling him the newly released Wii. The Court grants Wii-lite's motion for summary judgment.

Cartman then tries to sue Nintendo under the same claim. Because Nintendo is in privity with Wii-lite, claim preclusion bars Cartman's claim.

On claim preclusion, the parties DO need to be identical, don't they? Same P v. same D?

No, but they need to be in relationship (privity). i.e. Principal-Agent, Contract, etc

Ok ok; I need to update my Critical Pass cards . . .

[cdelgado]

It's bad enough that my state tests on commercial paper, but then when it starts asking questions about the Funds Availability Act and Regulation CC, come on.

[kyle010723]

It's bad enough that my state tests on commercial paper, but then when it starts asking questions about the Funds Availability Act and Regulation CC, come on.

Ugh what?