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Otis v. Arbella Mutual Insurance Co.3/14/2005
is v. Chen, 626 F.2d 933, 937 (D.C. Cir. 1980). See also Paixao v. Paixao, 429 Mass. 307, 309, 311 (1999). Others list prerequisites for the application of judicial estoppel, requiring that the inconsistent position have been articulated under oath in the prior proceeding. See, e.g., Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1271 (11th Cir. 2004), quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002). Cf. Valentine-Johnson v. Roche, 386 F.3d 800, 811, 812 (6th Cir. 2004) (while normally requiring that contrary position be taken "under oath," position taken in written motion and oral argument "may be fairly analogized to taking a position 'under oath' for the purposes of judicial estoppel"). In our view, protection of the oath is not the sole purpose of the doctrine of judicial estoppel, which applies more generally to the pursuit of an inconsistent "position," including an inconsistent "position" taken by that party's attorney without the party's adopting that "position" in sworn testimony. See, e.g., New Hampshire v. Maine, 532 U.S. 742, 751-755 (2001) (where New Hampshire had proposed and agreed to consent judgment interpreting Colonial decree establishing boundary, judicial estoppel precluded State from asserting contrary interpretation of same Colonial decree in later litigation); Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 34 (1st Cir. 2004) (judicial estoppel applied to inconsistent characterization of claim for purposes of avoiding Statute of Frauds defense). See also Tinkham v. Jenny Craig, Inc., 45 Mass. App. Ct. 567, 574-575 (1998) (judicial estoppel based on counsel's representations about amount in controversy made in support of motion to remand case to State court). While a party's "position" in a case will often be supported by that party's testimony under oath, a renunciation of testimony given under oath is not the sine qua non of judicial estoppel. Again, the broader purpose of the doctrine is to protect the integrity of the judicial system, and parties who play "fast and loose" with that system by means of any device, be it testimony under oath or arguments asserted by their counsel, may be subject to judicial estoppel.
Otis next argues that we have rejected the concept of judicial estoppel as it applies to the assignment of malpractice claims. See New Hampshire Ins. Co. v. McCann, 429 Mass. 202, 209-211 (1999). In that case, this court was asked to declare all assignments of legal malpractice claims void as against public policy. We declined to do so. Id. at 209. Recognizing that public policy might be implicated in certain circumstances, we opted to treat the enforceability of such assignments on a case-by-case basis. Id. at 209-210. The public policy impediments to such assignments (including judicial estoppel) would not be applicable in all cases, and did not justify a total prohibition against the assignment of legal malpractice claims. Id. at 211. In that case, for example, the assigned malpractice claim involved alleged mishandling of settlement documentation -- the merits of the underlying controversy in the prior litigation were "irrelevant" to that claim of malpractice, and thus did not involve any "distasteful role reversal which would demean and reduce the public's confidence in the legal process." Id. Rather than declare all assignments of malpractice claims unenforceable, we concluded that such claims could be assigned "unless some clear rule of law or professional responsibility, or some matter of public policy, necessitates that the assignment should not be enforced." Id. at 209-210. Nothing in New Hampshire Ins. Co. v. McCann, supra, precludes a judge from determining that, on the specific facts presented, enforcement of that particula
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