Column: Ever wonder why there are no ‘do-overs’ in court?


Are there mulligans or “do-overs” in court?

Suppose Bob and Steve enter into a contract. Bob buys two TV sets from Steve for $100 each. Bob pays Steve the $200 and receives the first TV set but soon discovers that it doesn’t work as well as he had hoped. Steve refuses to return the purchase money. Bob starts a lawsuit.

Eventually a trial is held. Bob explains the problems with the TV. The judge rules that while the case was extremely close, Bob loses. His case is dismissed. Can Bob sue Steve again? After all, the case was extremely close, and a different judge might have decided it differently.

Generally speaking, parties cannot sue again. A legal doctrine known as “res judicata” prevents another lawsuit. Res judicata is a Latin term meaning “a matter already judged.” It is based on the idea that society has an interest in ensuring that there is a final end to litigation. If people could repeatedly sue over the same claims until they were happy with the result, our court system would collapse due to the number and volume of cases.

The doctrine also recognizes the personal cost to being involved in a lawsuit. It is sometimes stated that res judicata prevents a person from being “twice vexed” by the same claim.

While it is possible that a second judge would rule in Bob’s favor, without res judicata, fairness would then seem to require a third judge to break the tie. The doctrine of res judicata rests on the presumption that there is no rational reason to believe that a second (or even third) trial would render a more just result than the first trial.

Res judicata also reaches out to prevent any other claims that could have been included in the first lawsuit. Suppose that in our case Bob forgot to tell the judge that he only received one of the two TV sets that he paid for. Because Bob could have raised that issue during the original lawsuit, res judicata now prevents that claim from being argued in a new lawsuit.

What if it is clear that the judge made the wrong decision? After all, judges are people too, and they can make mistakes. Shouldn’t justice allow a wronged plaintiff the right to start a new trial to correct the clear error? No.

Judicial error is to be corrected on appeal, not in new lawsuits. For this reason, appellate courts are sometimes known as “error correcting” courts. Appellate courts can correct errors of law — such as the judge misapplying the law or applying the wrong legal standard. They can also correct and reverse any clearly erroneous factual errors made by the trial court judge. Minnesota’s judicial system provides for two possible levels of appellate review — at both the Court of Appeals and the Supreme Court.

The doctrine of res judicata insures that people understand and bring their claims fully and carefully the first time, because there are no mulligans or “do-overs” in court.

Judge Galler is chambered in Washington County. If you have a general question about the law or courts for Judge Galler, send your question to [email protected] Learn more about Judge Galler, or listen to a podcast of his columns at