§24.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§24.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

This section discusses strategic and practical considerations regarding CR 24.

Practice Tip: When contemplating intervention, consider the relationship between CR 24 and the provisions for interpleader under CR 22. Often, one party to the existing controversy will align itself with the interests of a party contemplating intervention. In appropriate circumstances joint motions, one by an existing party for interpleader under CR 22 and one by the party seeking intervention under CR 24, may be brought. This procedure may be effective in cases involving a common fund or common property.

Practice Tip: Intervenors will sometimes want to "bargain" their way into a case (or out of a hostile reception) by assuring certain existing parties that their presence will be beneficial or at least not harmful. Tactics here include agreements to be bound by the existing case schedule, prior case rulings, or other similar matters. Intervenors and existing parties should each carefully evaluate such proposals, as they could find themselves constrained in pursuing their ultimate goals.

(1) No duty to intervene

Washington courts, both prior and subsequent to adoption of CR 24, have held that intervention is for the benefit of a prospective litigant and does not establish a mandatory obligation to intervene in an appropriate action. Interior Warehouse Co. v. Hays, 91 Wash. 507, 158 P. 99 (1916); Veradale Valley Citizens' Planning Comm. v. Bd. ofCnty. Comm'rs, 22 Wn.App. 229, 588 P.2d 750 (1978). However, a prospective litigant must be mindful of the rules of res judicata and collateral estoppel in deciding whether to intervene in a pending proceeding. And, of course, it is difficult at best for a litigant to protect his or her rights when the person is not taking part in the contest.

Practice Tip: Sitting on one's hands is not an effective litigation strategy You can be sure that if you had the opportunity to intervene in an action in which your client may have an interest and failed to do so, that fact will be quickly brought to the court's attention by the opposing party, no doubt combined with claims of laches, estoppel etc.

(2) Collateral estoppel and virtual representation

The potential application of collateral estoppel is illustrated in McDaniels v.Carlson, 108 Wn.2d299,738 p.2d254(1987).InMaDcmieZs, an individual (not the husband) who claimed to be the father of a child did not intervene in a dissolution proceeding, which established the responsibility of the husband to provide child support and therefore implicitly recognized the paternity of the husband. Collateral estoppel was raised as a defense to that individual's subsequent claim that he, and not the husband, was the father of the child. Although the doctrine of collateral estoppel was determined not to bar the later paternity action, the case illustrates the risk to a litigant of failing to intervene in litigation when the subject matter directly affects his or her interest. The liberal elements of collateral estoppel strongly suggest the need for intervention in appropriate cases.

Collateral estoppel may be asserted against someone who was not a party to the prior action, even without privity, under the "virtual representation" doctrine. Garcia v. Wilson, 63 Wn.App. 516, 820 P.2d 964 (1991); Hackler v. Hackler, 37 Wn.App. 791, 683 P.2d 241, review denied, 102 Wn.2d 1021 (1984). The court has declined to apply the doctrine when the nonparty had no interest or opportunity to intervene in the first...