Revisiting Claim and Issue Preclusion in Washington

INTRODUCTIONThirty years ago, the Washington Law Review published Claim and Issue Preclusion in Civil Litigation in Washington, 1 an article by prolific scholar2 and esteemed teacher3 Philip A. Trautman. Professor Trautman chose to address this "age-old topic" in order to report on development of the doctrine in Washington State courts and then to "suggest what may be forthcoming."4 At its core, the article called for doctrinal clarity and a pragmatic approach to preclusion law-a position that would require courts to provide more guidance, and, ideally, to simplify some of the complex, multi-level tests they used for claim and issue preclusion. Washington practitioners and judges immediately turned to Professor Trautman's commentary on the subject, and, even more notable, continue to rely on it well into the twenty-first century.5 Although the article appears to have been a valuable reference-a sort of preclusion primer-for practitioners and courts in Washington, the courts have not fully responded to the specific changes that Professor Trautman advocated. Some of those problems remain unresolved. Moreover, other problems in Washington's claim and issue preclusion doctrine have developed and become more significant since Professor Trautman's canonical work was published.This Article identifies three important problems that have remained unresolved or emerged since Professor Trautman's article, and recommends ways Washington law should change to improve efficiency and clarity-both central values behind preclusion law-and to conform to the due process standards the United States Supreme Court has imposed on the federal law of preclusion. Solving these problems in Washington's preclusion doctrine will require action by the Washington State Supreme Court. Instead of dealing with preclusion law mainly as a sidebar in cases that involve important substantive conflicts, the court should grant review in cases that present opportunities to focus on procedure and clarify the law.First, the Washington State Supreme Court should restructure the four-element identity test for claim preclusion, which currently requires courts to address eight analytic steps. The Court should pare its identity test down to the two elements that actually matter: precluding relitigation of identical claims between identical parties, or those in privity. The Court should also evaluate identity of claims by using the simpler "transactional nucleus of facts" test, instead of the four factors Washington courts use now. A streamlined approach to claim preclusion would simplify the analysis required of practitioners and courts alike, making litigation more efficient and outcomes more predictable.Second, the Court should abandon the discredited doctrine of virtual representation, which permits issue preclusion to bind some litigants who were not parties to the original action. Rejecting the doctrine would protect litigants' legitimate expectations of a day in court that they control, and would satisfy due process concerns. The United States Supreme Court recognizes several categories of nonparty preclusion. If the Washington State Supreme Court elects to go beyond those recognized exceptions, it should do so only in cases that involve serial litigation over a public rather than private right, and patently adequate representation in the first proceeding. Before taking that step, however, the Court should examine how existing joinder mechanisms could help parties avoid repetitive litigation over matters of public concern. This would allow Washington courts to avoid controversial decisions on the scope of nonparty preclusion.Third, the Court should insist that every Washington court engage in the proper analysis and give appropriate full faith and credit to judgments from federal courts and other state courts.Part I of this Article will describe Professor Trautman's article, place it in context, and highlight his recommendations to Washington courts. …