Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel
![handle is hein.journals/illlr80 and id is 1252 raw text is: Copyright 1987 by Northwestern University, School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 80, No. 5
COMMENT
Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel
Rand G. Boyers
I. INTRODUCTION
The doctrine of judicial estoppel prevents a party from asserting a
position' in a legal proceeding that is contrary to a position previously
taken by him in the same or some earlier legal proceeding.2 If a party
1 The term position is used in this Comment to refer to sworn testimonial representations,
sworn testimony, and positions asserted that, although not technically under oath, nevertheless were
intended to be accepted by a court as true.
2 A prototypical example of judicial estoppel is found in Finley v. Kesling, 105 Ill. App. 3d 1,
433 N.E.2d 1112 (1982). In a 1974 divorce action in Indiana, the plaintiff, Charles 0. Finley, then
owner of the Oakland Athletics baseball team, testified under oath that he owned 31% of the stock
of his corporation, his wife 29%, and his children 40%. The Indiana court accepted this testimony,
and thus did not include the children's 40% in dividing the property. In 1980, the corporation
adopted a plan for liquidation and distribution. In a 1982 Illinois suit, Finley sought a declaratory
judgment that he was the beneficial owner of the 40% of stock that he previously had testified was
owned by his children. In dismissing the 1982 action, the Appellate Court of Illinois stated:
Under the doctrine of judicial estoppel ... Finley having testified under oath that he owned
only 31% of the stock and his children owned 40% and having succeeded in convincing the
Indiana courts that this 40% belonged to the children and was not marital property, cannot
now contend that the stock is, in effect, his property.
Id. at 10, 433 N.E.2d at 1119.
For other cases that discuss judicial estoppel as a bar to the assertion of inconsistent positions,
see, e.g., Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598-99 (6th Cir. 1982); Allen v. Zurich Ins.
Co., 667 F.2d 1162, 1166 (4th Cir. 1982); Skokomish Indian Tribe v. General Servs. Admin., 587
F.2d 428, 433 (9th Cir. 1978); Eads Hide & Wool Co. v. Merrill, 252 F.2d 80, 84 (10th Cir. 1958);
Scarano v. Central R.R., 203 F.2d 510, 513 (3d Cir. 1953); Latino Political Action Comm. v. City of
Boston, 581 F. Supp. 478,480 (D. Mass. 1984); USLIFE Corp. v. United States Life Ins. Co., 560 F.
Supp. 1302, 1304 (N.D. Tex. 1983); Wade v. Woodings-Verona Tool Works, 469 F. Supp. 465, 467
(W.D. Pa. 1979); Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1177 (D.S.C. 1975);
Gottesman v. General Motors Corp., 222 F. Supp. 342, 344 (S.D.N.Y. 1963); Standage Ventures,
Inc. v. State, 114 Ariz. 480, 483, 562 P.2d 360, 363 (1977); Loomis v. Church, 76 Idaho 87, 93-94,
277 P.2d 561, 565 (1954); McClintock v. McCall, 214 Kan. 764, 766, 522 P.2d 343, 346 (1974);
Thomas v. Bailey, 375 So. 2d 1049, 1053 (Miss. 1979); Halliburton Co. v. Scroggins, 520 P.2d 667,
669 (Okla. 1974); McAuslan v. Union Trust Co., 46 R.I. 176, 189, 125 A. 296, 301 (1924); Melton v.
Anderson, 32 Tenn. App. 335, 342, 222 S.W.2d 666, 669 (1948); Moore v. Neff, 629 S.W.2d 827, 829
(Tex. Ct. App. 1982); Allen v. Allen, 550 P.2d 1137, 1142 (Wyo. 1976). See generally lB J. MOORE,
J. LUCAS & T. CURRIER, MOORE'S FEDERAL PRACTICE 0.405[8] (2d ed. 1984) [hereinafter
MOORE'S]; 18 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4477
(1981) [hereinafter FEDERAL PRACTICE].
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Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel
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