Res Judicata and Collateral Estoppel

Collateral estoppel (updated Feb. 8, 2015) A legal doctrine that says that a judgment in one case prevents (estops) a party to that suit from trying to litigate the same issue in another legal action. Also called issue preclusion. Nolo’s Plain-English Law Dictionary.

Once a court makes a final decision, it enters a final judgment in the case.
Once a court makes a final decision, it enters a final judgment in the case.

LII The doctrine of collateral estoppel, a common law legacy codified by Ashe v. Swenson 397 U.S. 436 (1970), protects criminal defendants from being tried for the same issue in more than one criminal trial. In Ashe v. Swenson, the Court ruled that the aegis of the Fifth Amendment’s protections against double jeopardy are enforceable in state as well as federal court through the Due Process Clause of the Fourteenth Amendment as established by Benton v. Maryland 395 U.S. 784. This decision relies on the application of the Full Faith and Credit Clause of the Constitution.

  • There was a crooked man, and he walked a crooked mile,
    He found a crooked sixpence against a crooked stile;
    He bought a crooked cat which caught a crooked mouse,
    And they all lived together in a little crooked house.
    Read more.

As a subgenre of res judicata, collateral estoppel prevents subsequent litigation of legal determinations of fact and law that have resulted in valid final judgments. All litigants have a “full and fair” opportunity to bring suit except where one party has brought effectively the same suit as defined by the same substantive legal issue in another venue or at another time against the same defendant. More.

“Res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum. A thing adjudged makes what was white, black; what was black, white; what was crooked straight; what was straight, crooked. 1 Bouv. Inst. n. 840.” Read here.

“When a young female doctor notices an unnatural amount of comas occurring in her hospital she uncovers a horrible conspiracy.” Coma (1978) IMDB. “So, when Aaron’s snake-staff ate the others, God was showing that God alone is sovereign in Egypt, not Pharaoh and not some snake goddess….” Read more from Beechwood Cross, here.

“A purported legal status or legal document that is taken to have never been valid or enforceable, from the start, from the moment of its purported existence. Oddly, what is void or voidable is, as far as it matters between the participants, still in force until challenged or rebuked, as the actors to the legal drama not yet unfolded proceed as if the void document or status was lawful.” Read about VOID AB INITIO.

“A sovereign state is one that is independent from all other authority, retaining the right and power to regulate its internal affairs without foreign interference. Sovereign immunity is the doctrine that precludes the assertion of a claim against a sovereign without the sovereign’s consent.” Read more about Tribal Sovereign Immunity, Fed Bank of MN, here.

From the Free Dictionary: Res Judicata [Latin, A thing adjudged.] A rule that a final judgment on the merits by a court having jurisdiction is conclusive between the parties to a suit as to all matters that were litigated or that could have been litigated in that suit.

The U.S. legal system places a high value on allowing a party to litigate a civil lawsuit for money damages only once. U.S. courts employ the rule of res judicata to prevent a dissatisfied party from trying to litigate the issue a second time.

Coma (1978), Ridley Scott
Coma (1978), Ridley Scott

Res judicata will be applied to a pending lawsuit if several facts can be established by the party asserting the res judicata defense. First, the party must show that a final judgment on the merits of the case had been entered by a court having jurisdiction over the matter. This means that a final decision in the first lawsuit was based on the factual and legal disputes between the parties rather than a procedural defect, such as the failure to serve the defendant with legal process.

Once a court makes a final decision, it enters a final judgment in the case. The judgment recites pertinent data about the case, such as the names of the parties, the fact that a jury verdict was rendered, and the disposition made. The judgment is filed with the court administrator for that judicial jurisdiction.

The party asserting res judicata, having introduced a final judgment on the merits, must then show that the decision in the first lawsuit was conclusive as to the matters in the second suit. For example, assume that the plaintiff in the first lawsuit asserted that she was injured in an auto accident. She sues the driver of the other auto under a theory of Negligence. A jury returns a verdict that finds that the defendant was not negligent. The injured driver then files a second lawsuit alleging additional facts that would help her prove that the other driver was negligent. A court would dismiss the second lawsuit under res judicata because the second lawsuit is based on the same Cause of Action (negligence) and the same injury claim.

Under the companion rule of Collateral Estoppel, the plaintiff will not be allowed to file a second lawsuit for money damages using a different cause of action or claim. Under collateral estoppel, the parties are precluded from litigating a second lawsuit using a different cause of action based on any issue of fact common to both suits that had been litigated and determined in the first suit. For example, the plaintiff who lost her auto accident case based on a theory of negligence cannot proceed with a second lawsuit based on an allegation that the driver intentionally struck her auto, thus making it an intentional tort cause of action. A court would assert collateral estoppel because the plaintiff could have alleged an intentional tort cause of action in the original complaint.

The application of res judicata and collateral estoppel produces finality for the parties and promotes judicial economy. Parties know that when final judgment is entered and all appeals are exhausted, the case is over and the decision will be binding on all issues determined in the lawsuit.

West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
Beetlejuice House from the Film by Tim Burton
Beetlejuice House from the Film by Tim Burton


res judicata (rayz judy-cot-ah) n. Latin, the thing has been judged, meaning the issue before the court has already been decided by another court, with the same parties. Therefore, the court will dismiss the case before it as being useless. Example: an Ohio court determines that John is the father of Betty’s child. John cannot raise the issue again in another state. Sometimes called res adjudicata.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

res judicata noun accommodated, adjudication, adjusted, agreed, arranged, brought to termination, came to determination, concluded, decided, decision, decree, determination, judgment, negotiated, resolved


See also: adjudicationBurton’s Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.


RES JUDICATA, practice. The decision of a legal or equitable issue, by a court of competent jurisdiction.
It is a general principle that such decision is binding and conclusive upon all other courts of concurrent power. This principle pervades not only our own, but all other systems of jurisprudence, and has become a rule of universal law, founded on the soundest policy.

If, therefore, Paul sue Peter to recover the amount due to him upon a bond and on the trial the plaintiff fails to prove the due execution of the bond by Peter, in consequence of which a verdict is rendered for the defendant, and judgment is entered thereupon, this judgment, till reversed on error, is conclusive upon the parties, and Paul cannot recover in a subsequent suit, although he may then be able to prove the due execution of the bond by Peter, and that the money is due to him, for, to use the language of the civilians, res judicata facit ex albo nigrum, ex nigro album, ex curvo redum, ex recto curvum.

From Such Crooked Wood....Nothing Straight Can Be Fashioned
From Such Crooked Wood….Nothing Straight Can Be Fashioned

The constitution of the United States and the amendments to it declare, that no fact, once tried by a jury, shall be otherwise reexaminable in any court of the United States than according to the rules of the common law. 3 Pet. 433; Dig. 44, 2; and Voet, Ibid; Kaime’s Equity, vol. 2, p. 367; 1 Johns. Ch. R. 95; 2 M. R. 142; 3 M. R. 623; 4 M. R. 313, 456, 481; 5 M. R. 282, 465; 9 M. R. 38; 11 M. R. 607; 6 N. S. 292; 5 N. S. 664; 1 L. R. 318; 8 L. R. 187; 11 L. R. 517. Toullier, Droit Civil Francais, vol. 10, No. 65 to 259.


But in order to make a matter res judicata there must be a concurrence of the four conditions following, namely:

  1. Identity in the thing sued for.
  2. Identity of the cause of action; if, for example, I have claimed a right of way over Blackacre, and a final judgment has been rendered against me, and afterwards I purchase Blackacre, this first decision shall not be a bar to my recovery, when I sue as owner of the land, and not for an easement over it, which I claimed as a right appurtenant to My land Whiteacre.
  3. Identity of persons and of parties to the action; this rule is a necessary consequence of the rule of natural justice: ne inauditus condemnetur.
  4. Identity of the quality in the persons for or against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse. Vide, Things adjudged.

Summarized and/or paraphrased from A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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Res Judicata and Collateral Estoppel from National Paralegal

Terms:Res judicata:
The doctrine of res judicata bars claims that have either been litigated or that could have been litigated from being litigated again.Collateral estoppel:
The doctrine of collateral estoppel bars issuesthat have been litigated from being litigated again.Affirmative defense:
An affirmative defense is a defense asserted by the defendant that essentially says, “even if all of the facts in the complaint are correct, I’m still not liable for a different reason.” Examples of affirmative defenses are res judicata, collateral estoppel, laches and statutes of limitation.
The doctrines of res judicata and collateral estoppel often come into play when a subsequent case, similar to a case already adjudicated, is filed. The rationale behind the doctrines is that an issue or cause of action fully litigated should not be litigated again. Res judicatais often referred to as “claim preclusion”. Collateral estoppel is often referred to as “issue preclusion”.Res judicata is raised when a party thinks that a particular claim was already, or could have been, litigated and therefore, should not be litigated again. When addressing a res judicata argument, a court will usually look at three factors. First, the court will consider whether there was previous litigation in which identical claims were raised, or in which identical claims could have been raised. The second factor to be considered is that the parties must be the same parties as those who litigated the original action. The third factor is that the original action must have received final judgment on the merits.The first factor to consider is whether there was previous litigation in which identical claims were raised, or in which identical claims could have been raised. For example:Andy brings a cause of action against Mike for injuries Andy sustained when he slipped and fell in Mike’s apartment. The one count complaint sounds in negligence. The case goes to trial and a jury determines that Mike was not negligent. A year later, Andy brings a cause of action against Mike for injuries Andy sustained while a passenger in Mike’s car when they were involved in a motor vehicle collision. Mike cannot employ the doctrine of res judicata because, even though they are the same parties and the first action was adjudicated on the merits, the two actions are completely unrelated. Although Andy could have raised the claim against Mike in the first action, the second action is not barred by res judicata. If, however, Andy files a cause of action a year later against Mike for the emotional distress Andy suffered at the time of the slip and fall, the court is likely to bar the claim because Andy should have raised the emotional distress claim in the first case, as it was based on the same incident. Even though the claims are not identical because Andy will have to prove different elements for each claim, they are so closely related that res judicataapplies.Most courts use a “transaction or occurrence” test to determine whether claims could have been raised in previous litigation; i.e., if the 2 claims are based on the same transaction or occurrence, they must be brought in the same action.The second factor to consider is whether the parties in the second action are the same parties that litigated the first action. This can be established either by showing that the parties litigating this action are identical to the parties who litigated the first action or by at least showing that the parties in the second action were in privity with the parties in the first action. For example:Josh brings an action against Barry for negligence, for injuries Josh sustained when he was a passenger in Barry’s car when it was involved in an automobile accident. The action is adjudicated on the merits and Barry is found to be not liable. Mary, who was also a passenger in Barry’s car with Josh when it was involved in the accident, files a different suit against Barry for negligence for injuries she sustained during the same accident. Barry asserts the doctrine of res judicata. Even though the two separate actions arise from the same accident and are against the same defendant, because the plaintiffs differ, the doctrine of res judicata does not apply.However, for res judicata to apply, the parties do not have to be exactly identical. If a party to the second action is in privity with a party in the first action, res judicata may apply. Privity means that the second party is connected or shares the same interests as the first party. There are many ways in which a party can be in privity with another party. For example, the second party may have succeeded to an interest that the first party had (such as if the second party bought the company that was the plaintiff in the first case). If the second party somehow controlled the litigation in which the first party was involved, or where the second party and the first party are involved in an agent-principal relationship, the doctrine may also apply. This often occurs in insurance and employment cases. If the first party either did or could have adequately represented the second party’s interests, then res judicata may apply. For example:(1) Brower, Inc. and Macrosoft, Inc. are software manufacturing companies. Brower, Inc. sues Macrosoft, Inc., claiming antitrust violations on Macrosoft’s part. Macrosoft prevails in the action. Later, Browser is acquired by Jetscape, Inc., another computer software company. Jetscape sues Macrosoft for antitrust violations for the same allegedly illegal actions that were the subject of the first claim. Res judicata will apply to bar Jetscape’s action.(2) Victim is involved in an auto accident when her car is struck by a Malmart, Inc. truck that is driven by Reckless. Victim sues Reckless and recovers an award of $100,000. Subsequently, Victim sues Malmart, trying to hold Malmart liable for the accident as well because Reckless was a Malmart employee performing his employment duties when he got into the accident with victim. Since Reckless and Malmart shared the same interests in the case (Malmart was responsible for Reckless’ conduct), res judicata would bar the action against Malmart because the same action had been litigated in the Victim v. Reckless case.The third factor to consider is whether the original action was judged on the merits of the case and whether that judgment was a final judgment. Final judgment does not occur when the case is settled by the parties on their own, or where the judge decides a motion or makes some other determination that does not resolve the case based on the facts and evidence of the case. This means that the final judgment must concern the actual facts giving rise to the claim. Dismissal of a case because the court does not have subject matter jurisdiction, because the service of process was improper, because the venue was improper or because a necessary party has not been joined, for example, are not judgments on the merits. Grants of these types of motions to dismiss really have nothing to do with the facts, except that the litigation is precluded by a technicality. As such, subsequent litigation as to whether the defendant is liable would not be barred.The doctrine of res judicata is not usually raised by motion. Under the federal rules, it must be raised by affirmative defense. In most situations, if a defendant does not raise the defense of res judicata, it is waived. See Rotec Industries, Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003) (“Claim preclusion is an affirmative defense which may be deemed waived if not raised in the pleadings. Moreover, the failure of the defendant to object to the prosecution of dual proceedings while both proceedings are pending also constitutes waiver.”).Collateral estoppel arises when the claim (cause of action) at the bar has not been litigated, but the exact issue that is now before the court has been raised and litigated in an earlier action or proceeding. Collateral estoppel is a bit different than res judicata, although the rationale is the same – it is a tool to prevent re-litigation of issues already litigated. See U.S. v. Wells, 347 F.3d 280, 285 (8th Cir. 2003) (“The collateral estoppel doctrine provides that ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ”).The requirements that must be satisfied before the doctrine of collateral estoppel is applied are similar to those for res judicata, but there are differences. First, the issues in the first and second litigation must be identical and must have been before a court. Second, the issue must have been actually litigated. Third, a final judgment must have been rendered, ultimately deciding the issue in question.The first factor is that the issues in the previous and subsequent litigation must be identical. Using the transaction or occurrence test would be too broad for collateral estoppel in most cases. Rather, the court will require that the issues be identical or very similar. When considering the doctrine of collateral estoppel, it is important to note that the subject matter of the subsequent litigation does not need to be the same as the subject matter of the previous litigation for the doctrine to apply. As long as the issue was already litigated, collateral estoppel can apply.The second factor is whether the issue was actually litigated during the first case. Unlike with res judicata, if the issue could have been raised, but wasn’t, the defendant will not be collaterally estopped from raising the issue in subsequent litigation.The third factor is that the issue must have necessarily been decided on the merits. There are two requirements for this factor. First, the issue must be implicated in the judgment. If an issue is raised in the previous litigation, but the issue is not decided or has no connection to the judgment, then the issue cannot be the target of collateral estoppel. Along these lines is a jury’s finding that is not one of the reasons for the judgment. For example, if the plaintiff brought a negligence action with a two count complaint, with both counts sounding in negligence, but the jury simply finds that the defendant was negligent, the doctrine of collateral estoppel probably cannot be invoked, since it is not clear which issue was the subject of the final adjudication. Second, like res judicata, the issue must have been decided on the merits and not based on a technicality.In most cases, the identity of the parties, or those in privity to the original parties, must be the same as in the first action. Some courts, however, will not impose such a requirement.See Brockman v. Wyoming Dept. of Family Services, 342 F.3d 1159, 1166 (10th Cir. 2003).

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