Reprinted with permission from Litigation, Volume 47, Number 1, Fall 2020, at 35-40. ©2020 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Fess up. The phrase is part of your lawyering DNA, right? It’s certainly part of mine.
Reflexively, we litigators look for what law school taught us to spot—meaningful distinctions between cases that otherwise appear to negatively affect or control our own. Our minds impulsively shift into search mode. We’re detectives on the trail of some breakthrough clues. In almost a game, often with high stakes, we pursue the missing key that unlocks the secret door. And we feel a special wave of bliss when we succeed. Addicted, we hunt for more, noting the thinnest slices of fact or law to escape an unfavorable decision.
Through it all, we’re advocates, so when our position is reversed, we do the opposite. Armed with case law authority that seems to positively affect or control, and confronted with an argument that the case does not perfectly apply, we respond by trying to distinguish away the purported distinctions. We seek to embrace the favorable ruling by suppressing the argued distinctions as meaningless slivers of difference.
This tussle over difference and commonality is especially sharp when issues of res judicata or collateral estoppel arise, forcing us to address the real impacts of a first decision on a second case. It’s a heightened fight over the usual distinction process. We confront the painful prospect that the loss is fixed and its effect cannot be avoided. Phrases like “no second bite at the apple” and “no do-over” signal that the distinction game is playing out in a more costly realm.
Still, we do not give up. We search mightily for rationales to keep the quest alive. We argue it’s not the same thing, that the parties and issues in the second case are not close enough to those in the first case to suffer the final closeout.
What about when that first decision came from an arbitration, rather than a public lawsuit? That’s an extra twist. Does it give us another angle? Arbitration awards are not court judgments, we say. Doesn’t that remove us from the wrath of claim or issue preclusion?
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