Agenda for 36th Class

1. Agenda for 36th Class • Admin • Handouts • Review class – Tuesday 5/13 10-11:15 • I will stay in the room until at least noon to answer questions • Last / next 4 classes are canceled: M 4/21, W 4/23, F 4/25, M 4/28 • Review class is next (and last) class • Office hours • M. April 21, 10-noon • F. April 25. 10-noon • M. April 28 10-noon • W April 30. 10-noon • T May 13. 11:15-2PM • Other times by appointment • Exam • Review of forum non conveniensand collateral estoppel • Collateral estoppel

2. Assignment for Review Class • 2011 Civ Pro Exam essay questions (handout) • Any questions you want to ask

3. Exam • In class • Thursday 5/15, 9-12 (won’t need 3 hours) • Multiple choice • Can use calculator • Open book • Take home • Essay or essays • Any continuous 8-hour period during exam period • Probably advisable to take sometime Wednesday, 5/14 • Open book, calculator • Concerns about take-exam • If you need a quiet place to take take-home exam, please let me know • I will try to arrange a quite place for you to work • If you are concerned about cheating • Remember that cheating will be severely punished • Remember that law school has lots of experience with situations of potential cheating • Upper level take-home exams, writing assignments, etc. • Cheating is very rare

4. Exam Studying Advice • Study for exam as though it were an in-class, timed exam • Don’t assume you can learn material during exam • Outlining • Do your own • Benefit is making outline, not having one • Compare outline to others’ outlines, after you are done • Create one page mini-outline / list of topics & issues • Do practice problems • Glannon • Don’t’ look at answers until you have tried to figure it out yourself • Blackboard questions (if haven’t already done) • Do old exams • Write out full answers BEFORE looking at model or discussing with others • Don’t worry about time • Compare your answer to others’ answers • Compare your answer to model answer • Be very critical – sentence by sentence • Make sure you understand what you missed • Even best exam misses 50%

5. Exam Advice • Read question carefully • Outline answer before starting to write, so well structured • Pay attention to genre • Memo to partner different is different from appellate opinion • Compare 1995 Question 2 model answer to 2013 model answer • Include one or two-paragraph executive summary at the beginning • Summarize key conclusions and reasons for those conclusions • NOT just road map • Use headings to separate issues • Consider putting most important issues first • Make sure you justify your conclusions with reference to facts in the question • Take a break after completing your first draft • Go over one page outline/list of topics & issues to make sure you didn’t miss issues • Re-read the question and go over one-page outline again • Proofread and revise • Take a break • Reread question again, go over one-page outline again, revise again, proofread

6. Study Tools • Glannon • MyLaw Portal • “Exams on the Web” • Exams and 1995-2002 • “Secure Documents” • Model answers to writing assignments / questions discussed in class • Exams, memos, and model answers to 2012 and 2013 exams • Memo and model answer to 2011 exam will be posted after review class • “Recorded Classes” • Recordings of all classes • www.klerman.com, “Civil Procedure” button • Slides for all classes • Handouts • Particularly useful exams • Recent exams: 2011, 2012, and 2013 • Multiple choice: 2000 & 2013

7. Review of Last Class Forum Non Conveniens If case would be more conveniently litigated in different legal system Transfer not possible Forum non conveniensdismissal Change in law or procedure is not usually grounds to retain case where witnesses and evidence are elsewhere Res Judicata Claim preclusion Cannot relitigate same claim Cannot relitigate related claim Federal rule: Cannot relitigate claim that arises out of same transaction or occurence State rules (e.g. Illinois) may be narrower Apply res judicata rule of court which rendered first judgment Case 1. Illinois state court Case 2. Federal court If res judicata issues arises in Case 2, apply Illinois state court rules on res judicata Raise res judicata in answer as affirmative defense Usually resolved on summary judgment 7

8. Collateral Estoppel Requirements • 1. Same issue • 2. Actually litigated. No C.E. if party admitted issue in first suit • 3. Actually decided. No C.E. if court resolved case without deciding issue • Can be hard to tell if jury verdict • 4. Necessarily decided / Essential to judgment • If changing result on issue would not change outcome of case, then no C.E. • If court decides negligence case by finding duty, but no negligence • No C.E. on duty • CE would not be fair to defendant, because could not have appealed finding of duty • If court decides contract case by deciding that there was no contract and that, even if there was a contract, there was no breach • Some courts follow Restatement 2nd • C.E. applies neither to “no contract” nor to “no breach” • Court may not have thought carefully about • Plaintiff may have thought appeal futile • Unless issue squarely decided on appeal • Other courts follow 1st Restatement and apply C.E. to both • Like res judicata, apply collateral estoppel rules of court which rendered first judgment

9. Collateral Estoppel Questions • Illinois Central v Parks • Train collision • Suit 1. Jessie v. IL Central • Bertha ‘s claim. Compensation for injuries • Judgment. 30K • Jessie’s Claim. Loss of services and consortium • Judgment for defendant • Suit 2. Jessie v. IL Central for Jessie’s injuries • No c.e. on contributory negligence, because J for defendants could have been based on two findings • No damages in loss of consortium claim • Contributory negligence by Jessie • So neither essential, so c.e. on neither • So Jessie can relitigate whether he was contributorily negligent • Yeazell p. 753 Q 2 • Ruhrgas. • Fed Court dismissed, citing lack of subject matter J OR lack of personal J • Plaintiff refiled in state court • Yeazell p. 756 Qs 3-4

10. Nonmutual Collateral Estoppel I • Traditionally, collateral estoppel applied only when parties were the same in first and second suit (like res judicata) • Some court allow person not a party to the first suit to assert collateral estoppel, as long as person against whom c.e. asserted was in the first suit (and 4 other requirements satisfied) • Called nonmutual collateral estoppel • 2 kinds of nonmutual collateral estoppel • Defensive • Offensive • Defensive nonmutual collateral estoppel • Plaintiff sues defendant1 for patent infringement • Court decides that patent is invalid • Plaintiff sues defendant2 for patent infringement • Defendant2 can assert collateral estoppel against plaintiff • Because plaintiff already litigated and lost on issue of patent validity • Now accepted in nearly all jurisdictions • “defensive” means asserted by defendant

11. Nonmutual Collateral Estoppel II • Offensive nonmutual collateral estoppel • Plaintiff1 sues defendant for poisoning water • Court decides that defendant poisoned the water • Plaintiff2 sues defendant for poisoning the water • Defendant may be estopped from arguing that did not poison the water • Very controversial • If defendant loses one case (1st or 2nd or 99thcase), would mean that defendant loses all subsequent related cases • But if one plaintiff loses case, then later plaintiffs not bound by c.e • Discourages joinder • Defendant may not have had incentive to litigate hard in first case • Federal courts have discretion to apply c.e. offensively. • Factorsfrom Parklane • Has there been inconsistent litigation outcomes? • Did plaintiff strategically wait (not join) so as to take advantage of offensive non-mutual collateral estoppel • Did defendant have sufficient incentive to litigate issue aggressively in first case • “Offensive” means by plaintiff • Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b