The Legal System – You Only Get One Bite at The

The Legal System – You Only Get One Bite at The Apple – Kelly Rains Jesson

  • 12 Jan 2017
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Kelly Rains JessonAlmost everyone has heard of the phrase “double jeopardy” and knows that it means a criminal defendant may only be tried once for a crime. It he is found not guilty, the government cannot try him again for the same offense.

Double Jeopardy

But did you know that the civil justice system has something like “double jeopardy” and it is even more stringent in civil cases? Two similar principles called res judicata and collateral estoppel will prevent you, as a plaintiff, from suing someone for the same claim more than once or even filing a different claim with the same underlying issue as the first case. Also, you cannot sue someone a second time for a completely new issue if you could have included it in the first lawsuit but did not.

Generally, this means that if you were wronged and you file a lawsuit, and if it is dismissed with prejudice by the Court, you cannot refile the same lawsuit or a lawsuit involving the same underlying facts.

For example, let’s say your neighbor’s dead tree fell onto your property, hitting your car and your pet, killing him. You file a lawsuit seeking compensation for your pet. You believe your insurance company will reimburse you for the car. The court dismisses the lawsuit because it found that the tree falling was an act of God and your neighbor was not negligent. Later, you find out that the neighbor knew the tree was dead and had been advised by a tree expert that it was going to fall within the next month. You believe that your neighbor was negligent. Your insurance company does not reimburse you for your car. You file a lawsuit seeking money to compensate you for damage to your car. More than likely, you will be barred from filing that lawsuit. Even though you are seeking money for different damages and because you have new information that may prove your neighbor was at fault, the court has already made a decision that your neighbor was not negligent. You do not get to relitigate the case.

Lessons Learned

There are many lessons to be learned. First, you should not rush into a lawsuit. You should wait and file the lawsuit after you’ve gathered as much information as possible because if you learn of new information after the case has been dismissed, you’re out of luck. It is very rare that a court will allow a second lawsuit due to newly discovered evidence. However, also be aware of statutes of limitations (limits on the time you can file the claims – normally, about three years).

Second, you should really consider hiring an attorney. A lot of people try to file lawsuits on their own, especially in small claims court, if the money damages sought are not very high. However, if you attempt to navigate the legal system on your own and are unsuccessful, you will not get a second bite at the apple. An attorney can help you with the fact gathering before filing a lawsuit and with identifying all potential claims to make sure they’re all included with the first lawsuit.

Finally, you should not underestimate your opponent. You may quickly file a lawsuit, thinking it is an open and shut case, there’s no way you’re going to lose, and be completely unprepared when the defendant shows up with an attorney who swiftly and successfully gets the case dismissed. You may be blindsided, and there’s nothing you can do about it if it is dismissed with prejudice. A lot of “pro se” plaintiffs (meaning, without an attorney) do not know to ask the court to dismiss a claim “without prejudice” and with leave to amend the complaint, which would allow them to refile the case.

This blog article serves as a cautionary tale for people who try to navigate the system on their own. A lot of people are successful, but for those who are not, it comes at a price. Not only do they lose that particular case, but they may lose their right to bring additional claims or issues before the court in the future.

If you are currently involved with a dispute and are considering filing a lawsuit, please consult with an attorney before doing so, so that you do not unknowingly waive your right to bring claims in the future.


Click here to read originally published article, January 10, 2017,

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