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September 26, 2018

Judicial Estoppel

Case:   Polly Spann Kershaw v. Jeffrey L. Levy

Issue:  Is a former client judicially estopped from claiming her attorney gave her negligent representation after the client swore in the underlying legal proceeding that she was satisfied by the result of the case?

Facts:   Former Client sued her former Divorce Attorney, claiming she suffered monetary damages due to Attorney’s negligent legal representation. Attorney moved for summary judgment, arguing Client’s claims were barred by the doctrine of judicial estoppel because of sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment.

Appellate Decision:   The intermediate court affirmed the grant of summary judgment, finding Client swore under oath in the underlying case in her MDA that the settlement was fair and equitable, and is thus judicially estopped from now suing her lawyer on the basis that she received an inequitable statement, especially because the malpractice lawsuit was filed before the MDA.

Review Granted:   September 18, 2018.

Prediction:   Ben thinks the Supreme Court will overrule the legal holding that Client is absolutely estopped from making an argument contrary to a sworn statement in a judicial proceeding when suing for malpractice in that same proceeding. After all, an attorney’s negligent representation could be the basis for the client’s misunderstanding. However, Ben thinks the Supreme Court will nonetheless affirm summary judgment in favor of Attorney given the facts of the case.