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Spring 2015 // Journal of American Law 29 elements of Judicial estoppel In order to determine whether to apply the judicial estoppel doctrine, the court will consider several factors. First, a party's later position must be "clearly incon- sistent" with its earlier position. [Citations omitted.] Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the frst or the sec- ond court was misled." [Citations omitted.] Absent success in a prior proceeding, a party's later incon- sistent position introduces no "risk of inconsistent court determinations," [citations omitted] and thus poses little threat to judicial integrity. [Citations omitted.] A third consideration is whether the party seeking to assert an inconsistent position would de- rive an unfair advantage or impose an unfair detri- ment on the opposing party if not estopped. 3 Te court noted that this is a fexible formula and that ad- ditional considerations may inform the doctrine's application in specifc contexts. 4 It is an equitable doctrine. Clearly Inconsistent Positions As to the frst factor, the positions must be clearly inconsis- tent. Tey must be based on the same set of facts. Te posi- tions may be ones of fact or law. Judicial estoppel is applied both to the assertion of inconsistent positions in the same litigation and when inconsistent positions are taken in two diferent cases. 5 Courts have held that, not only must the statement on which the judicial estoppel is based be "deliberate, clear, and unequivocal," 6 but also it must be an afrmative statement. Silence when there is a duty to speak might be the basis for applying equitable estoppel, but it is not sufcient to apply judicial estoppel. 7 However, the failure to list assets in sched- ules when asked for that information is at the heart of judicial estoppel. Te failure to disclose assets is the equivalent of an afrmative representation that the asset does not exist. 8 Court Acceptance As to the second factor, the court must be persuaded in re- sponse to the statement. "[A] litigant is not forever bound to 3 Id., at 750-751. 4 Id., at 751. 5 Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 783 (9 th Cir. 2001). 6 In re: Estate of James Donald Loveless, 64 S.W.3d 564, 578 (Tex. App. 2001). 7 Id. 8 Cricket Communications, Inc. v. Trillium Industries Inc., et al., 235 S.W.3d 298, 306 (Tex. App. 2007). a losing argument." 9 In Hamilton v. State Farm Fire & Cas. Co., 10 the court held that a policyholder was judicially estopped from assert- ing claims against his insurer for bad faith and breach of the insurance contract for failure to pay a vandalism and thef claim because he had failed to disclose the insurance claim in his bankruptcy schedules. Tere was a discharge in Hamilton's bankruptcy (although that discharge was later vacated). Diferent courts take diferent positions regarding wheth- er a discharge in bankruptcy is needed before the court re- liance element of judicial estoppel is met. See, e.g. Stallings v. Hussman Corp., 447 F.3d 1041 (8 th Cir. 2006) (judicial es- toppel was not applied because "the bankruptcy court nev- er discharged Stallings's debts based on the information that Stallings provided in his schedules. Instead, the bankruptcy court granted the bankruptcy trustee's motion to dismiss the case"); Crouch v. Guardian Angel Nursing Inc., 2009 U.S. Dist. LEXIS 82096 (M.D. Tenn. 2009) (holding judicial estoppel inapplicable and noting that the plaintif 's bankruptcy peti- tion had been dismissed voluntarily without relief or other beneft); Cargo v. Kan. City S. Ry. Co., 408 B.R. 631 (2009) (holding judicial estoppel was not applicable because the bankruptcy court never accepted an inconsistent position as it did not confrm the plan until afer the debtor had amended his schedules to add the claim at issue); Ford v. CLECO Corp., 2006 U.S. Dist. LEXIS 40073 (W.D. La. 2006) (holding that re- liance was not established for the purposes of judicial estoppel since the bankruptcy court had dismissed the action before making any determination as to the existence or nonexistence of the debtors' assets); Spann v. DynCorp Tech. Servs. LLC, 403 F. Supp. 2d 1082, 1089 (M.D. Ala. 2005) (holding that the au- tomatic stay was not sufcient to establish the court reliance/ acceptance element of judicial estoppel and stating "that bene- ft existed irrespective of the claims she listed (or failed to list) in her flings. In this case, the automatic beneft of a stay on collection action prior to dismissal of a bankruptcy case is not a beneft that threatens judicial integrity in a way sufcient to provide a basis for judicial estoppel"). Equitable Principles Te third factor is the application of equitable principles. Some courts look to see if there was misconduct: "Judicial estoppel is applied with caution to avoid impinging on the truthseeking function of the court … [and] cannot apply without some decision or ad- mission" as to whether a party actually engaged in alleged misconduct. [Citation omitted.] 11 In Reciprocal Merchandising Services Inc. v. All Advertis- ing Associates Inc., 12 the bankruptcy court stated: 9 Levinson v. United States, 969 F.2d 260, 265 (7 th Cir. 1992). 10 270 F.3d 778, 783 (9 th Cir. 2001). 11 Levinson v. United States, 969 F.2d 260, 265 (7 th Cir. 1992). 12 163 B.R. 689 (S.D.N.Y. 1994).