In a decision handed down March 19, 2019, a unanimous Missouri Supreme Court clarified and applied the doctrine of “judicial estoppel.” “Judicial estoppel is invoked to protect the dignity of the judicial proceedings and to prevent parties from playing fast and loose with the judicial process by taking inconsistent positions in two different proceedings,” the Court said. This was the first time the Court has addressed judicial estoppel since the U.S. Supreme Court considered and endorsed it in a 2001 case. The Court of Appeals had done so—using, as the Supreme Court described it, “varied and sometimes inconsistent approaches.”
Here, the doctrine was applied to Matthew Vacca, a former Missouri administrative law judge (ALJ). Vacca was granted long-term disability because he showed that he was no longer able to work, and was then terminated from his position. He brought suit claiming that his termination constituted employment discrimination. Meanwhile, he addressed his disability in his marriage dissolution case. The Court stated the conflict in Vacca’s positions: he claimed in his employment discrimination case that “he could have continued to work as an administrative law judge (ALJ) for 20 years, but in his ongoing dissolution proceeding he claimed he was entitled to maintenance because he was totally unable to work.”
The Court declined to set out a specific test for judicial estoppel, holding instead that it is “a flexible, equitable doctrine” and endorsing three considerations identified by the U.S. Supreme Court:
- Whether a party’s later position is “clearly inconsistent” with its earlier position;
- Whether the party “succeeded in persuading a court to accept that party’s earlier position,” creating “the perception that either the first or the second court was misled”; and
- Whether asserting an inconsistent position would give the party “an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”
How does judicial estoppel affect those involved in employment disputes, such as discrimination cases?
- Employees must be careful not to take a position in unrelated litigation that is inconsistent with a basis for their discrimination claim.
- Employers must explore any other proceedings in which an employee may be involved, such a disability and divorce cases.
The Court’s opinion is available here.
James Layton leads the firm’s Appellate practice group and is a member of the firm’s Commercial Litigation, Labor, and Education groups. He assists clients with analysis and presentation of complex legal issues in Missouri and federal courts, both trial and appellate. In addition to handling cases himself and with other attorneys at Tueth Keeney, Jim consults with clients on appellate strategy and assists other counsel in high-stakes, complex appeals.
Jim has briefed and argued cases before the U.S. Supreme Court and before all Missouri appellate courts—including more than 90 cases before the Missouri Supreme Court. He has represented clients in U.S. district courts and in Missouri circuit courts from Jackson County to the City of St. Louis. He has extensive experience with government-related litigation and state taxation disputes. Jim is a fellow of the American Academy of Appellate Lawyers, a past president of the Bar Association of the U.S. Court of Appeals for the Eighth Circuit, and a past chair of the American Bar Association’s Council of Appellate Lawyers. He is a frequent speaker in the areas of appellate practice and constitutional law, both state and federal.