Washington Law Review


When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements to make the test more consistent with prevailing modern rules. Instead of clinging to a four-element test that includes a four-factor subtest, the courts should simply examine identity of parties and claims, and should use a transactional test to determine claim-identity. Second, Washington courts should abandon the discredited doctrine of virtual representation, which has bound nonparties to the results of actions in which they either testified or had an advisory role. This use of nonparty preclusion violates litigants’ due process rights, and wastes resources by encouraging litigants to argue the theory even though it is rarely a successful defense. While it might be defensible to preclude nonparties when the earlier action involved an assertion of public rights, courts should proceed with caution, and ensure that Washington’s current rule applies only in the most limited circumstances. Third, Washington courts need to consider Full Faith and Credit principles in every case that involves a judgment from another state or federal court. Ignoring these principles has led courts to apply the wrong preclusion law to judgments of other courts, a practice that harms litigants and undermines the legitimacy of the courts’ decisions.

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