Simply put, judicial estoppel is an equitable doctrine that is intended to prevent a party from deliberately taking inconsistent positions under oath in separate proceedings and thus making a mockery of the judicial system.  The holdings in Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002) and Barger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003), involving bankruptcy matters, have consistently been cited by litigants in the fight to effectively preserve the judicial process and prevent an unfair advantage by a party taking inconsistent positions. There appeared to be an inference that the sole act of taking inconsistent positions automatically meant the second prong of the analysis – making a mockery of the judicial system – was already met.

Some would say that judicial estoppel died, or at least was critically injured, when the Eleventh Circuit overruled prior precedent – Burnes and Barger – and adopted a stricter standard regarding the element of intent on the second prong of the judicial estoppel analysis in Slater v. United States Steel Corporation, 871 F3d 1174 (11th Cir. 2017).  The prior automatic assumption that a party’s inconsistent positions equaled intent to make a mockery of the judicial system is now insufficient. The Slater court held that a proper analysis requires a review of a totality of the circumstances – all facts surrounding the issue – prior to applying judicial estoppel.  Such factors include, but are not limited to, the debtor’s level of sophistication; circumstances surrounding the inconsistent statements; whether and under what circumstances any corrective action was taken by the debtor; and whether the debtor’s attorney was aware are of the inconsistencies. While the decision in Slater did raise the burden bar on the intent prong, judicial estoppel is still a viable equitable relief doctrine.