Academic journal article The Review of Litigation

A New Framework for Judicial Estoppel

Academic journal article The Review of Litigation

A New Framework for Judicial Estoppel

Article excerpt

David S. Coale*


The doctrine of judicial estoppel prevents a party from asserting inconsistent positions in different lawsuits. It strives on the one hand to avoid "the perversion of judicial machinery,"' and on the other to avoid the "suppression of truth in the future."2 The doctrine has never enjoyed a consensus in the courts about either its elements or even its existence. Even where it is accepted, courts differ about the kinds of statements that invoke the doctrine and about how inconsistent those statements must be in order to trigger an estoppel.3

In contrast, the concept of judicial admissions is widely recognized. A judicial admission is a statement by a party or its counsel that is treated as conclusively establishing a matter, thereby eliminating the need for proof on the issue.4 A judicial admission differs from an evidentiary admission, which a party is allowed to contradict at trial.5 This Article proposes that the judicial admission doctrine could help develop a framework for the analysis of judicial estoppel issues. Both the doctrines of judicial estoppel and judicial admissions define categories of statements that cannot be contradicted. Because the doctrines have similar goals, the concepts developed in judicial admission law could help courts clarify areas that are now unsettled in judicial estoppel law.

Part II of this Article describes the basic principles of the law of judicial estoppel and judicial admissions.6 Part III then details how the judicial admissions doctrine can help identify prior statements that could justify a judicial estoppel if contradicted. It then develops a test for when judicial estoppel should actually apply to such a statement in a subsequent suit, focusing on the effect of the statement in the subsequent suit if treated as a judicial admission. Part IV concludes.

II. The Doctrines of Judicial Estoppel and Judicial Admissions A. Judicial Estoppel

By regulating a litigant's ability to contradict itself, the doctrine of judicial estoppel seeks to resolve a basic tension of the adversary system.7 The adversary system tries to foster the natural development of arguments as discovery and case analysis progress. The system also requires boundaries to discourage "cynical gamesmanship" unrelated to the development of the merits of a case.8 The difficult balancing act required to resolve this tension has led to several different formulations of the judicial estoppel doctrine, as well as its rejection by some jurisdictions.9

1. Jurisdictions accepting the doctrine.-Jurisdictions that accept the doctrine of judicial estoppel share concerns about judicial integrity and the control of gamesmanship. It is difficult to summarize the treatment of the doctrine further; indeed, even within a jurisdiction courts often remark that "each case must be decided upon its own particular facts and circumstances."lo Nevertheless, two major interpretations of the doctrine can be identified,ll with the first focusing on whether the first forum adopted or relied upon the litigant's representations to it, and the second focusing on the more general question of whether a litigant's inconsistencies amount to "playing fast and loose" with the system.12

(a) Prior adoption.-The majority view among federal circuit courts"3 is that the doctrine of judicial estoppel does not apply unless an earlier forum adopted the assertion that is contradicted in the subsequent litigation. 14 Within that majority, there are two main views about the application of the doctrine.

One view focuses on the harm to the opposing party by having inconsistent positions adopted against it.15 As Judge Alvin Rubin has observed, judicial estoppel

is founded on the same ethical precept as estoppel in pais: a party who has induced someone else to act in a particular manner should not be permitted later to cause loss to the person he has misled by adopting an inconsistent position. …

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