One position in affirmative defense and legality of taking the opposite position during suit

Short answer: sometimes you can, but sometimes you cantand whether you should depends on the courts rules, what you previously told the court, and basic fairness to the other side. Below I explain in plain language what an affirmative defense is, why someone might want to take a different position later, and the main legal and practical limits you need to be aware of.

What is an affirmative defense?

An affirmative defense is a defendants claim that, even if the facts the plaintiff alleges are true, there is a legal reason the plaintiff still cant win. Examples include self-defense, statute of limitations, consent, or assumption of risk. When you raise an affirmative defense, youre not denying the basic facts so much as saying the law excuses or bars the claim.

Why would someone take an opposite position later?

There are several reasons a party might change or reverse course:

• A new fact or piece of evidence appears that makes the earlier position untenable.
• Strategic reasonswhat helps at one stage (like pushing an early settlement) might hurt later at trial.
• The party amends its pleadings to add or drop defenses after further investigation.

Is it legal to take the opposite position?

Legality depends on context. Courts balance fairness to the opposing party, the integrity of the judicial process, and basic notice rules. The main doctrines and rules that come up are:

1) Judicial estoppel (inconsistent positions)

Judicial estoppel prevents a party from deliberately taking one position in a lawsuit and then later taking a contrary position to gain an advantage or to contradict what a court has accepted. Key features most courts look at include:

• Whether the partys previous position was accepted by the court (for example, relied upon in a judgment or in bankruptcy proceedings).
• Whether the change would give the party an unfair advantage or unfairly harm the other side.
• Whether the change was intentional or was based on a genuine mistake/new evidence.

Judicial estoppel is not automatic everywhere, but it is a common rule used to preserve fairness.

2) Waiver, amendment, and pleading rules

Civil procedure typically allows parties to amend pleadings, add or drop defenses, and clarify positionsoften with the courts permission. Amending a pleading to remove or change an affirmative defense is usually allowed, especially if done early and before the other side is prejudiced. If you simply change your defense before the court relies on the earlier statement, courts are more forgiving.

3) Evidence and testimony constraints

Even if you can change legal positions on paper, you cant knowingly put forward false sworn testimony or knowingly mislead the court. In criminal cases, there are special rules: defendants have constitutional rights and protections, but courts and lawyers must still follow ethical rules about candor and not allowing falsehoods in evidence.

4) Ethical and professional rules

Lawyers are bound by professional conduct rules that restrict knowingly making false statements to a tribunal. A lawyer who tries to flip-flop in a way that involves deceit risks sanctions or other consequences.

Practical examples

Here are two simplified illustrations:

• Insurance litigation: An insured initially tells the court that the insurer must cover a claim. Later, at trial, the insured takes the opposite position to try to obtain a different recovery. If the court relied on the insureds earlier position or another party was prejudiced, the court might invoke judicial estoppel.
• Personal-injury case: A defendant raises an affirmative defense of comparative fault early in the case to put pressure on settlement. Later the defendant wants to argue they didnt even cause the injury at all. If the defendant never made sworn statements the court relied on, courts may allow the new position, but credibility and strategy issues remain.

How to handle a changing position without running afoul of the rules

1. Be transparent. If facts change, explain the change in a motion to amend or a short court filing instead of springing it on the court and the other side.
2. Seek leave to amend pleadings early and provide good reasons for the change.
3. Avoid contradictory sworn statements. Dont sign or present affidavits or testimony you know to be false.
4. Consider the timing. Changes before the court has relied on a position are less risky than reversals after a judgment or relied-upon ruling.
5. Talk to counsel. The rules and case law vary by jurisdiction; a lawyer can assess risks like judicial estoppel or waiver in your specific case.

Bottom line

You can sometimes take a different position after initially asserting an affirmative defense, but you must proceed carefully. Courts wont allow gamesmanship that misleads the tribunal or harms the other side, and ethical rules limit what lawyers can do. If the earlier position was accepted by the court or relied upon in a way that would make a reversal unfair, doctrines like judicial estoppel can block the switch.

If youre facing a situation where you think you need to change an affirmative defense or take a contrary position, consult a lawyer who can evaluate the particular facts and local rules. That will help you change course in a way thats legally safe and strategically smart.