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A dismissal based on "merit" and "one based on res judicata" are two different things.
Although a judge could dismiss based on both reasons.
I am a law clerk for an older attorney, and I have not taken civil procedure yet. He asked a question regarding res judicata and if it could be dismissed in federal court, or something like that. when he asked me, it was the first time I had ever heard the term so I couldn't comprehend quite well what he was asking
To be honest, I am not even sure if I am asking the right question. I just felt too embarassed to go back and ask him again. He is intimidating and I did not want to seem ignorant, even though I completely am on the subject.
No problem. Res judicata means that the issue has already been decided. It is the term that would be used if a case has been brought before.
I know it was something about Federal Courts, dismissals, and res judicata
A dismissal based on merit would actually be "lack of merit" meaning there is no case.
Factually or because the law is against you/
So would a "No" answer to a memo make sense if the question was , if a case was dismissed based on merit, could it be brought back to court through res judicata? I'm sorry, I am just so confused
That would be correct. If a case is dismissed because it "had no merit" then the concept of res judicata would mean it couldn't be brought again.
Please feel free to ask questions until it is clear.
So, how would you formulate a proper memo question presented that would be professional and the answer would be no.
Can you rephrase?
Ok, so the assignment is to write a memo for him. I overheard one of the other attorneys mentioning that the answer to his question was, "No." But, becasue I had never heard the term res judicata before, I was not able to clearly comprehend what he was asking. I just remember him saying federal court, dismissed based on merit, res judicata, and erased. I know I am just probably confusing the heck out of you. I need to formulate a proper question presented for the memo so that it reflects a no answer.
Let me think on that for a few minutes.
I should have went up to him and had him clarify his question. I feel like if I was able to get help from you to formulate the proper question, one which the answer would be "no", it would tremendously help. Then I would be in a better position to conduct my own research
Do you mean something like "If a case in federal court is dismissed due to a lack of merit can it be refiled?"
I guess something like that, but the question would need to include res judicata in it
would this question make sense legally: "If a case in federal court is dismissed due to a lack of merit can it be erased based on res juducata?"
Okay. How about "Does res judicata allow a case that has previously been dismissed in federal court for lack of merit to be refiled?"
ohh that sounds good! and the answer would be no?
I'm not sure what the "erased" has to do with anything. That isn't a legal term.
The answer would be no.
Does it matter whether the answer is yes or no? There is a better way to phrase that question, but the answer is yes.
A better way to phrase it is "Does res judicata prevent a case that has been dismissed in federal court for lack of merit to be refiled?"
I don't think it will matter, but as long as it has some of those elements, (federal court, merit, dismissed, res judicata) it should be fine however it is phrased and answerd
ohhhh that does sound good, so the naswer would be yes then. It would prevent
I think the second one is a better way to phrase it but the answer would be "Yes, res judicata woudl prevent the case from being refiled."
and the main argument to that would be is becasue it was dismissed based on merit
how do you think I should conduct the rest of my research to prepare a good memo?
Yes, because it was dismissed based on the merits of the case then it prevents a court from re-litigating the issue.
I'm not sure what you mean by that, can you explain?
would it be crazy if I asked how much for a memo on that?
Do you mean how much would it cost to write the memo?
is that possible through this website
We can't do that. The terms of the website prevent us from doing any actual preparation of documents, we just answer questions.
I can give you some website where you can get it done if you would like.
I can also point you to a good book on doing legal research.
I would greatly appreciate that
For the book look at http://lessonsinlaw.com/the-guerrilla-guides-to-the-law/ . There is one on that page on legal research that is very good.
As to website try elance.com and odesk.com. Both of those have contract attorneys and paralegals available at reasonable prices.
ok great, thank you! Do you think you could steer me in the right direction on how to go about answering this memo, specifically answering the second question yoou formulated. You have helped me so much just by formulating that question. I should probably do the research on my own, it wouldn't do me any good if I keep paying my way out of doing the work myself. And now I feel like I can handle the memo
As far as an answer, it would be basically what I gave you above:"Yes, in a situation here a federal judge has dimissed a case based on a lack of merit, res judicata would prevent a party from refiling a case with the same facts and parties." You would then insert case law that supports the answer. There should be plenty of case law that does that.
And I'm glad I could help.
Honestly, from the bottom of my heart,, thank you so much! You have helped me so much. I will make sure to leave the best feedback I possibly can! You are FANTASTIC!!!
You're very welcome! Tell all your friends!
Also, if you need me in the future just start the question with FOR JD 1992 and I'll pick up when I see it. I'm online for at least a few minutes almost every day.
Anything else before I leave to assist others?
I think that's it, but I will write your username down and go straight to you! It's going to be a long second year of law school so I'm sure we shall speak again!
Best wishes to you in your school!
And please don;t forget to leave a Positive Rating so I get credit for my work.