Judicial Estoppel
By: Chuck Edwards

Judicial estoppel is a judge-made doctrine that “prevent[s] a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous legal proceeding.”[1] The Supreme Court has recognized that the purpose of judicial estoppel is “to protect the integrity of the judicial process . . . by prohibiting parties from deliberately changing positions according to the exigencies of the moment.”[2] Thus, judicial estoppel “is intended to protect the courts rather than the litigants.”[3]

Courts nationwide have held that judicial estoppel is appropriate when three factors are present: (1) the party to be estopped is asserting a position that is clearly inconsistent with its position in a prior proceeding; (2) the party’s change of position threatens judicial integrity; and (3) the use of judicial estoppel is tailored to address the potential harm to the court’s integrity and authority caused by the change in positions.[4]   

In the State of Mississippi, the doctrine of judicial estoppel has never been clearly defined. Only one Mississippi case has discussed judicial estoppel in detail. Thomas v. Bailey, 375 So. 2d 1049 (Miss. 1979) announced the following factors to consider including: 1) allegations or admissions in pleadings were made in a former action and a contrary assertion is made in a pending action; 2) the allegations or admissions must have been material; 3) the issues in the two actions must be the same; 4) a determination consistent with the assertion must have been made in the former action; 5) the parties must have been adverse in the former action; and 6) the earlier position must not have been the result of mistake.[5] The court noted that some states have held that unless the party was benefited by the earlier assertion, there should be no estoppel.[6]  Finally, the court held that reliance and injury are not necessary.[7]

It appears that the result driven Mississippi Supreme Court has unofficially adopted the 5th Circuit standard in a recent case styled, Rankin v. Am. Gen. Fin., Inc., 912 So. 2d 725, (Miss. 2005), where it found that the Plaintiff who disavowed TILA to escape removal to Federal court could then not use TILA at the state court level. Interestingly, none of the factors noted in the Thomas v. Bailey case were even discussed in the opinion.

The Fifth Circuit standard is pretty easy to understand and well defined.  The Fifth Circuit has stated the purpose of the doctrine is to prevent litigants "from 'playing fast and loose' with the courts...."[8] Id. In the Fifth Circuit, "two bases for judicial estoppel" must be satisfied before a party can be estopped.[9] 

First, it must be shown that "the position of the party to be estopped is clearly inconsistent with its previous one; and [second,] that party must have convinced the court to accept that previous position.”[10] Additionally, a recent district dourt has reviewed the issue of whether Federal or State law applies to judicial estoppel issues, “. . . generally this Circuit considers judicial estoppel ‘a matter of federal procedure’ and, therefore, applies federal law.”[11] While some states add other factors such as detrimental reliance, it does not appear that neither the Mississippi Supreme Court nor the Fifth Circuit require such to apply the doctrine.

How is judicial estoppel different from collateral and equitable estoppel?

Mississippi recognizes the elements of collateral estoppel to be as follows: (1) relitigation of the same issue previously decided by a valid judgment, (2) between the same parties, privies or within a relationship that is an exception to the privity requirement.[12] Additionally the Mississippi Supreme Court has defined equitable estoppel as that it requires a representation by a party, reliance by the other party, and a change in position by the relying party."[13]  Equitable estoppel seems to be very similar to judicial estoppel but the representation need not have been made in a pleading or position to a court.

In summary, the facts and circumstances of each case will determine whether judicial estoppel will apply. Similarly, the particular judge or appellate court seems to have great deference whether to apply it. But if used and applied properly, it can be a powerful tool to eliminate an opponent’s argument.


[1] Ryan Operations v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d. Cir. 1996); see also Delgrosso v. Spang & Co., 903 F.2d 234, 241 (3d. Cir. 1990).

[2] New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (internal quotations and citations omitted); cf. Wright & Miller, 18A Fed. Prac. & Proc. Juris.2d § 4443 (noting that “judicial estoppel[] may bind a party to an admission or stipulation”).

[3] Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 121–22 (3d. Cir. 1992).

[4] Montrose Medical Group Participating Savings Plan v. Bulger, 243 F.3d 773, 777–78 (3d. Cir. 2001).

[5] Thomas v. Bailey, 375 So. 2d 1049 (Miss. 1979).

[6] Id. at 1053

[7] Id. at 1052

[8] Ahrens v. Perot Systems Corp., 205 F.3d 831, 833 (5th Cir.2000).

[9] Id.


[10] Id.

[11] Hall v. GE Plastic Pacific PTE Ltd., 2003 WL 1747764 (5th Cir.(Tex.)), (quoting) Ergo Science, 73 F.3d at 600; accord Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 530 (5th Cir.2000)

[12] Johnson v.Bagby 171 So. 2d 327; (Miss 1965)

[13] Carr, 733 So. 2d at 265 (quoting Westbrook v. City of Jackson, 665 So. 2d 833, 839 (Miss. 1995) (citing Izard v. Mikell, 173 Miss. 770, 774, 163 So. 498, 499 (1935))