Legal Issues in the Coronavirus Pandemic

First and foremost, we at Gilbert & Greif, P.A. want you to stay safe and healthy during these times. Federal, state and local authorities are issuing guidelines and bulletins daily, and there will be more to come. Business at every level is affected, and families and individuals face uncertainty regarding what lies ahead, both medically and financially.

Like everyone else, we have been impacted by these events, but the good news is that we are open and available to assist our clients with their legal questions and problems. Some may arise specifically out of the coronavirus situation, and others are part of everyday life, as unusual as things are at the moment. For the safety of all, we are restricting personal visits to the office, but we can still cover a lot of ground through phone, video and email. The law has faced previous pandemics so there is precedent to be drawn on. Although there has been some emergency legislation passed at both the federal and state levels, most of what we deal with and have dealt with for years remains in place. Because of court shutdowns, there will be delays in certain cases, but that is nothing new. We resolve to remain calm and carry on. If we can be of assistance, please don’t hesitate to contact us.

One Bite of the Apple: Claim Preclusion & Issue Preclusion


In the American system, it is fairly easy to get in the courthouse door; almost anyone who is willing to pay the filing fee-and many who are unable to do so-are given access to our civil judicial system. While the American system is relatively open to provide a litigant his “day in court,” the system has developed a pretty strict set of rules that make sure that a party to a court case gets only one bite of the apple.

As a society, we have determined that multiple, repetitive lawsuits serve little useful purpose and are costly, duplicative and in come cases, vengeful. On the criminal side, the Constitutional provision against double jeopardy is also an embodiment of the ideal that there should not be multiple serial judicial proceedings once there has been a final verdict and judgment in a case.

In the civil arena, the legal terms encompassing these principles are called res judicata and collateral estoppel. A rough translation of the former from Latin is “a thing adjudged.”  The basic concept is pretty simple: if someone brings a court case against another party and that case is finally resolved-usually on the merits but sometimes not-then that party is deemed to have had his “bite of the apple” and cannot bring another case against the same party arising out of the same transaction or any other matter which was or could have been litigated in that case. Like many things in the law, there are exceptions, but that rule of res judicata is an accepted part of the fabric of the judicial system. Collateral estoppel, or issue preclusion is a related concept which speaks to discrete issues rather than entire cases. For example, if a suit is brought and damages are determined to be $50,000.00, then the Plaintiff may well be estopped to claim that his damages were really $100,000.00, because they have already been judicially determined to be $50,000.00 in the earlier proceeding. However, because Defendant Number Two was not a party to the earlier litigation, he is not bound by the earlier judgment and therefore may be able to argue that the Plaintiff’s damages are less than $50,000.00. The key is that the doctrine applies to those who were parties to the earlier action, and in some instances, to their heirs and successors, but not to persons who were “strangers” to the earlier case.

A development in this area which seems to parallel the growth of the broad field of regulatory law is the application of these doctrines in the non-judicial administrative arena. An extreme example might be going to the local Code Enforcement Office for a building permit, and being turned down. Sometimes, but not always, the correspondence denying the permit will advise an applicant of his right to appeal to the local Board of Appeals. What if the applicant doesn’t do so? Is he going to be barred or estopped from coming back later and reapplying for that permit? The answer could well be “yes,” in an application of these doctrines. Another example would be an applicant for Social Security disability who applies and is turned down. A reapplication at a later time may be at least limited by the effect of the previous denial.

The rationale of judicial decisions which have upheld those denials at a later time is that the applicant had a right and a route to appeal if they felt the denial was wrong, and cannot come back later and attempt to relitigate a case or issue already decided. Thus, some people, especially those who didn’t seek timely legal advice, find out to their dismay that they are barred or prevented from undertaking what they thought was going to be routine because of what they believed to be a low level and minor decision, which may well have been wrong at the time. Stated another way, if a judicial or administrative decision becomes final, it cannot later be attacked or overturned even if it was a wrong decision.

To complicate matters even further, there may be decisions which are deemed binding for some purposes but not for others. The Maine Supreme Judicial Court has recently decided that a prior OUI conviction obtained without adequate legal representation at the time could not be used to enhance criminal charges, and thus were stricken for that purpose, but those very same convictions could form the basis for the Secretary of State’s determination of the person to be a habitual offender, which gave rise to a separate criminal charge under that law.

These issues can be complex, even for lawyers, and perhaps of more concern, they are not the type of problem that is always immediately apparent at the start of a civil or administrative matter. By the time someone realizes the problem and consults a lawyer, it may be too late to collaterally attack a prior judicial or administrative decision.

Consulting with legal counsel sooner rather than later is one way to reduce the risk of an unwanted and unpleasant result. Under present law, there is no requirement that a local, state or federal government advise an applicant of the possible application and consequences of these doctrines, and thus the average citizen is on hisr own to learn what could happen, and how it could affect them down the road. Having timely legal advice could make the difference between success and failure.