MBE Tip of the Day: Civil Procedure

Answer to the Civil Procedure MBE Question

Subject: Civil Procedure

Legal Issue: Collateral Estoppel and the Full Faith and Credit Clause

Legal Rule and Analysis: Under the Full Faith and Credit clause, courts must give the same effect to a judgment that the court that issued it would. That means that when we consider a res judicata or collateral estoppel issue, we must consider whether the court issuing the judgment would give a preclusive effect to the judgment or an issue decided therein. The elements of collateral estoppel are: (1) the issue in the second case must be the same as the first; (2) the issue must have been actually litigated; (3) the issue was actually decided; and (4) the decision must have been necessary to the court’s judgment.

In this case, since the original case was decided in State A, whether it has a preclusive effect or not must be evaluated under the law of State A. Since State A allows for the use of non-mutual offensive collateral estoppel (e.g. collateral estoppel used against a different, i.e., nonmutual, party in an offensive way–i.e., it is the plaintiff rather than the defendant using the doctrine), the restaurant will be precluded from litigating the issue of whether or not it owed a duty to warn in the current federal court case if all of the elements of collateral estoppel are met. First, the issue in the second case is the same as the first: whether the restaurant owed a duty to warn of the spill on the floor. Second, the facts tell us that the case between Plaintiff 1 and the restaurant actually litigated this issue. Third, the facts tell us that the issue was actually decided: the restaurant did owe a duty to warn. Fourth, the facts tell us that the determination was essential to the State A court’s decision to rule in Plaintiff 1’s favor. Note that this is “nonmutual” collateral estoppel since the parties are different. It is “offensive” since it is the plaintiff using it.

Thus, all of the elements of collateral estoppel are met and the federal court should prohibit the restaurant from litigating the issue of whether or not it owed a duty to warn.

Conclusion: The federal court should prohibit the restaurant from litigating the issue of whether  it owed a duty to warn because it must follow the law of State A.

Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.  The answer choice (C) is therefore correct. (A) is incorrect because the Full Faith and Credit clause requires a court to give a judgment the same preclusive effect as the court rendering the judgment would. Therefore the federal court would apply State A’s law on collateral estoppel. (B) is incorrect for the same reason as it improperly characterizes what law the federal court should apply. (D) is incorrect because there is no basis in law for the court to wait for the original case’s appeal to proceed. The State A judgment was a final judgment on the merits and all of the elements for collateral estoppel are met. Since State A allows for the use of non-mutual collateral estoppel, that doctrine should be applied.

MBE Tip: Civil procedure can be the most difficult MBE subject to prepare for given how new to the exam it is. Most courses and practice books don’t offer any NCBE-released real MBE civil procedure questions, namely because they didn’t exist. It is critical that you are practicing with real MBE questions so that you are familiar with exactly the style of question you will see on exam day. Since civil procedure was just recently added, bar exam prep companies have very little guidance to go off of when developing study questions. You might find that a lot of the civil procedure questions out there are very difficult or rather obscure. Try not to get too concerned with your results on those! Luckily, the NCBE recently released new practice questions, including civil procedure ones! Since these questions were written by the NCBE itself, they are much more representative of what you are going to see on the exam than what you’ll find in practice books. You can find FREE NCBE released Civil Procedure questions here. And JD Advising is selling additional questions here!