Is Judicial Estoppel Dead?

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.