Defenses and Affirmative Defenses
Procedural Defenses
Issue preclusion requires that the issue be identical, actually litigated, necessarily decided, and essential to a valid final judgment. The party against whom it is asserted must have had a full and fair opportunity to litigate.
Mutuality is no longer required in most jurisdictions.
Alternative Names:
Issue Preclusion, Estoppel by Judgment
Why it Matters?
Non-mutual defensive preclusion is the most useful application, allowing a defendant to invoke a prior adverse finding against a plaintiff who previously litigated and lost the same issue, even though the defendant was not a party to that action. Offensive non-mutual preclusion is more restricted, since courts consider whether the plaintiff could have joined the earlier action and whether the prior judgment was inconsistent with others.
Frequently Confused with
Related terms
Frequently asked questions
What is non-mutual defensive preclusion?
Why is offensive preclusion more restricted?
