Article of Interest

You Can’t Say That! What You Need to Know About Judicial Admissions and Estoppel
By: Andy Jones

You know res judicata. You’re rock solid on collateral estoppel. But, how well do you know the difference between judicial estoppel and judicial admissions? Both give preclusive effect to prior testimony and representations by parties. And, both can help or hurt you and your client in more than just the pending case.

Judicial admissions come in two varieties: testimonial and documentary. Cf. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Testimonial admissions are considered “quasi-admissions,” while pleadings (documentary) are considered formal judicial admissions. Id.; see also In re C.C.J., 244 S.W.3d 911, 923 (Tex. App.—Dallas 2008, no pet.). Testimonial admissions will not be considered conclusive judicial admissions unless they pass a five-factor test. Mendoza, 606 S.W.2d at 694.

The factors for a testimonial (“quasi-admission”) to be considered a judicial admission are -

1) the declaration relied upon was made during the course of a judicial proceeding;
2) the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony;
3) the statement is deliberate, clear, and unequivocal - the hypothesis of mere mistake or slip of the tongue must be eliminated;
4) the giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and
5) the statement is not also destructive of the opposing party's theory of recovery.

Mendoza, 606 S.W.2d at 694.

Why is this important? While a pleading or written stipulation is a judicial admission, a statement in an affidavit, sworn declaration, or deposition may also be a judicial admission, if the five-factors are met. Therefore, you and your client need to pay extra attention when testifying about outcome determinative issues. Generally, judicial admissions apply only to a pending case.

Judicial estoppel is a judicially created doctrine which, when applied, prevents a party from disputing, in the current case, a fact established as a matter of law in a previous proceeding. See Bailey-Mason v. Mason, 334 S.W.3d 39, 43 (Tex. App.—Dallas 2008, pet. denied). The Dallas Court of Appeals described judicial estoppel as a means to prevent a party from “playing fast and loose with the courts.” Webb v. City of Dallas, 211 S.W.3d 808, 820 (Tex. App.—Dallas 2006, pet. denied). Remember, judicial estoppel is different from a judicial admission.

To be judicially estopped by a statement, four elements must be satisfied. The statement must -

1) be a sworn, prior inconsistent statement in a judicial proceeding;
2) be a position “successfully maintained” in the prior proceeding;
3) not be made inadvertently or by mistake, fraud, or duress;
4) be deliberate, clear, and unequivocal.

See DeWoody v. Rippley, 951 S.W.2d 935, 944 (Tex. App.—Fort Worth 1997, no writ).

There are two important things to keep in mind when assessing whether judicial estoppel applies. First, sworn, prior inconsistent statements don’t just come from affidavits. Beware, counsel’s signature on a document and representation to the Court is sufficient to satisfy the first factor of judicial estoppel for your client. See Webb, 211 S.W.3d at 820. Second, the second factor requires that the position to be estopped was one “successfully maintained” in a previous action. See Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009). Texas case law interprets this requirement to mean that the party to be estopped must prevail in the prior litigation. Id. Remember though, that the purpose of judicial estoppel is to stop a party from taking an inconsistent position from one case to a next. Thus, whether you won your last case may not be determinative of whether judicial estoppel applies. 

Why is this important? Ever consider how the stipulations you made in your last case with a client could impact that client in the next case? What you, your witnesses, and your pleadings say in one case can impact the course of your next case. And, always remember your duty of candor to the tribunal. Tex. Disciplinary Rules Prof’l Conduct R. 3.03.

Being aware of judicial estoppel and judicial admissions based on testimony will help you and your client prepare for deposition and trial. More importantly, awareness of these doctrines will allow you protect your client’s rights in future cases. 

Andy Jones is a Senior Associate at Sawicki Law, and he can be reached at ajones@sawickilawfirm.com.