We all know the admonition from Miranda v. Arizonaanything you say may be used against you.  The question lawyers need to ponder – and adversaries need to pounce upon – is whether that same admonition applies to what lawyers say in their openings and closings, with the added concern that the warning will be anything you say SHALL be used against you, and you can’t dispute it.

The principle at issue is what is called a binding judicial admission, and its roots can be traced back to at least 1880, when the U.S. Supreme Court stated that “[i]n the trial of a cause the admissions of counsel, as to matters to be proved, are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called.”  Oscanyan v. Winchester Repeating Arms Company, 103 U.S. 261 at p. 263, 26 L.Ed. 539 (1880).

The rule has been developed to [hopefully] not embrace casual or conditional phrases.  The language used must be tantamount to a  voluntary and deliberate waiver of the right to contest a fact or issue.  United States v. Belculfine, 527 F.2d 941, 944 (1st Cir. 1975) (citations omitted).  Said another way, “In order to qualify as judicial admissions, an attorney’s statements must be deliberate, clear and unambiguous.”  MacDonald v. GMC, 110 F.3d 337, 340 (6th Cir. 1997).

It is rare, but the principle has been applied to treat an opening statement as a binding admission.  “Letraset’s binding judicial admissions, and evidentiary admissions [included]…[t]he opening statement by Letraset’s counsel at trial [that] clearly indicated that Letraset was not challenging Pantone’s right to license its mark on ‘new’ commercial artist supplies once the right of first refusal had been accorded.” Pantone, Inc. v. Esselte Letraset, Ltd., 878 F.2d 601, 607 (2nd Cir. 1989).

The same has been applied to closing arguments.  VHT, Inc. v. Zillow Group, Inc., 2017 U.S. Dist. LEXIS 95010, *29-31 (Wash. W. Dist. 2017).  One illustration suffices.

“Our review of Bentson’s closing statement convinces us that the language quoted above was a straightforward judicial admission, not merely a concession for the sake of argument. It was a binding concession that Bentson did not file valid returns for the years 1983 and 1984… Having stated in open court that he was not claiming that he filed valid tax returns, Bentson may not now claim that the government failed to prove he did not file valid tax returns.

United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991).

And Pennsylvania law? There is nothing express about opening statements or closing arguments being binding judicial admissions, but the general principle is accepted.  “Statements of fact by one party in pleadings, stipulations, testimony, and the like, made for that party’s benefit, are termed judicial admissions and are binding on the party.”  State Farm Mut. Auto. Ins. Co. v. Palmer, 2021 Pa. Super. Unpub. LEXIS 2801, *9 (citation and internal quotation omitted).  It includes statements “made in court” by a party’s attorney, at least as to facts that are admitted unequivocally.  Coleman v. Wyeth Pharms., Inc., 6 A.3d 502, 524 (Pa.Super. 2010).

So, what does this imply?  In extreme instances, what is stated in opening or closing becomes binding, warranting that lawyers think before they speak.  And even if not binding, it may in some instances be consider a party opponent statement, with counsel as the agent of or authorized spokesperson for the litigant.  Finally, of course, this is all law.  Your words in an opening are grist for your opponent’s mill – they may be thrown back at you as promises that were broken or apparent concessions.  Binding or not, be careful for how words might be used against you and your cause.




Leave a Comment