Under what conceivable circumstances would a very competent and
powerful attorney representing a plaintiff in a civil court case
involving millions of dollars in real estate and other equity matters,
not make an affirmative defense of res judicata a part of discovery,
knowing that his or her client had never been involved in a court case
prior to the present suit and knowing that his or her client had never
litigated any matter whatsoever in court or arbitration or otherwise
in his or her entire life?

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Request for Question Clarification by richard-ga on 26 Jun 2005 07:02 PDT

Hello
Your question parses to:
"Under what circumstances would a[n] attorney not make res judicata a
part of discovery, knowing that his or her client had never been
involved in [any] court case?"

Since res judicata is the defense that the issue before the court has
already been decided by another court, between the same parties, isn't
the answer to your question
"An attorney would always not make res judicata a part of the case in
this circumstance [and technically discovery wouldn't be the place to
make an affirmative defense anyway, it would be in the answer to the
plaintiff's pleading]."
 
Please let me know if I'm on the right track.

Thanks,
Richard-ga

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Clarification of Question by morb-ga on 26 Jun 2005 08:33 PDT

The question does not preclude res judicata being an affirmative
defense raised in the defendant's answer to the plaintiff's pleading.
And if this were indeed the case, why wouldn't the plaintiff's lawyer
try to discover why res judicata was raised in view of the facts
contained in the original subject question?

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Clarification of Question by morb-ga on 26 Jun 2005 08:40 PDT

The question does not preclude res judicata being an affirmative
defense raised in the defendant's answer to the plaintiff's pleading.
And if this were indeed the case, why wouldn't the plaintiff's lawyer
try to discover why res judicata was raised by the defendant as an
affirmative defense in view of the facts set forth in the original
subject question?

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Request for Question Clarification by richard-ga on 26 Jun 2005 09:36 PDT

Can you tell us more details of the case - - what the case is about,
and how the res judicata issue did or didn't enter the picture?
Knowing the whole picture increases the chance that I or another
Researcher will be able to help you.
-R

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Clarification of Question by morb-ga on 26 Jun 2005 17:29 PDT

The question does not preclude res judicata being an affirmative
defense raised in the defendant's answer to the plaintiff's pleading.
And if this were indeed the case, why wouldn't the plaintiff's
attorney try to discover why res judicata was raised by the defendant
as an affirmative defense in view of the facts set forth in the
original subject question?

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Clarification of Question by morb-ga on 27 Jun 2005 02:03 PDT

Given the framework of the original hypothetical subject question, are
there any conceivable reasons why a competent very serious plaintiff's
attorney would completely ignore a res judicata affirmative defense
presented by competent very serious defense counsel?

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Clarification of Question by morb-ga on 28 Jun 2005 04:36 PDT

My question apparently merely implied that res judicata is a
legitimate defense. Clarifying and defining my question further (with
a competent plaintiff's attorney being defined as one who in fact
knows by the time that the defense is raised, that the res judicata
defense is legitimate), my question is: "Under what conceivable
circumstances would a competent and serious plaintiff's attorney
completely ignore a legitimate affirmative defense of res judicata
presented by competent serious defense counsel?"

A defendant's lawyer will raise every conceivable affirmative defense,
without regard to whether there are, at the time of pleading, any
facts to support it.  When you are drafting an answer to a complaint,
you routinely assert laches, estoppel, statute of limitations, waiver,
res judicata, collateral estoppel, supervening intervening cause, and
anything else you can think of and plead them as affirmative defenses.
 If I was a plaintiff's lawyer and I received an answer that contained
res judicata as an affirmative defense, I would initially ignore it
because I would know that it was just thrown in along with the rest of
the kitchen sink.  It would be typical, however, for the plaintiff's
lawyer, through discovery, to at least ask about the affirmative
defense at some point to see if the defendant has any basis for it. 
Such discovery could be in the form of a deposition or some
"contention interrogatories," as they are called.  If it turns out
there is no basis for the defense, then plaintiff will move to get the
defense tossed out to narrow the pleadings and define the issues for
trial.

So the answer to your question is, in a word, "yes."  At least during
the preliminary stages of the litigation.

OK.  Got it now.  Well, if the defendant raises a valid res judicata
affirmative defense and everyone knows it's valid, there is no good
reason plaintiff's lawyer would ignore it.  Sounds like you were a
plaintiff and that you are contemplating a malpractice action against
your lawyer because you lost based on res judicata and your lawyer did
not properly discover the facts surrounding that defense.

But there's still a lot about this that's odd.  Under what's called
Rule 11 of the Rules of Civil Procedure, a plaintiff's lawyer has an
obligation to invesitgate the facts of a case before filing suit.  If
everyone knew that there was a valid res judicata defense floating
around, i.e., that this matter had been previously litigated between
the same parties or their privies and that a court of competent
jurisdiction had rendered a final judgment on the merits on the same
claims, demands or causes of action, why was plaintiff filing this
suit?  That seems like a Rule 11 violation to me.

The only other thing I can think of is that at the time the
affirmative defense was raised the plaintiff's lawyer honestly
believed it was invalid and thus conducted no discovery, but that
hypothesis contradicts your stated facts since you state that the
defense was legitimate.  On your stated facts, there is no reason the
defense should have been ignored in discovery.  But again, if it's
legitimate, why is plaintiff suing???   The "thing has been decided"
(res judicata).