To mount a defense against the use of Constructive Res Judicata in a legal battle, a defendant should focus on several key strategies. First, they can argue that the issue at hand was not central or could not have been raised in the previous case due to factors such as lack of opportunity, unawareness of the issue, or procedural constraints. This is particularly effective when new facts, evidence, or circumstances have arisen that were not available during the prior litigation. Second, the defendant can highlight that material facts or legal circumstances have changed significantly since the earlier case, making the previous judgment irrelevant or unjust in light of new developments. They can also argue that justice would not be served by applying Constructive Res Judicata, especially if applying it would unfairly prevent them from raising legitimate claims or defenses. Lastly, challenging the finality of the prior judgment, particularly if there were flaws in the original proceedings or issues like fraud or lack of proper representation, can weaken the invocation of the doctrine. By effectively presenting these arguments, the defendant can create a strong case for why Constructive Res Judicata should not apply, ensuring that the matter is properly litigated.
