It is a generally-understood principle that a statement of fact contained in a motion or pleading may constitute a formal judicial admission which is accepted as true by the court and jury and binds the party making it. What is less understood are the circumstances under which this rule may be extended to in-court statements and testimony and when these statements may be held to be equally conclusive.
Although formal judicial admissions may look like the quasi-judicial admissions found in Rule 801 of the Texas Rules of Evidence (statements made during judicial proceedings which are exceptions to the hearsay rule and constitute some evidence, but not conclusive evidence), they actually work more like the discovery admissions of Rule 198 of the Texas Rules of Civil Procedure, because they do constitute conclusive evidence. The main difference is that they aren’t governed by any rule or statute, and we must look to case law for guidance on their application.
The general rule is that any formal declaration against interest made in open court by a party has the potential for being construed as a judicial admission. Davidson v. State of Texas, 737 S.W.2d 942 (Tex. App. — Amarillo 1987). At first blush, it may appear that such a broad rule would carry enormous risk that an unsophisticated or imprudent client might just talk himself right out of court. Fortunately, the law provides certain safeguards to protect those who lack requisite wordsmithing skills to avoid the heartburn associated with a meal of their own words.
First, courts have clarified that this rule should be applied with caution. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex. App. — San Antonio 1951). Second, courts seem to indulge an initial presumption that such statements are quasi-admissions, not true judicial admissions, and, as such, some evidence, but not conclusive of the facts admitted. Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 6924 (Tex. 1980). Only when a party’s statement satisfies each prong of the Texas Supreme Court’s five-prong test will a quasi-admission be elevated to the status of a formal judicial admission and bind the party making it:
1. The declaration relied upon was made during the course of a judicial proceeding. This appears to include deposition testimony, Adams v. Tri-Continental Leasing Corp., 713 S.W.152 (Tex. App. — Dallas 1986) (deposition testimony in that case held not to be a judicial admission due to conflict in the testimony), but not out-of-court statements made after suit was filed but prior to trial. American Baler Co. v. SRS Sys, Inc., 748 S.W.2d 243 (Tex. App. — Houston [1st Dist.] 1988).
2. The statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony. The prong is fairly self-explanatory. What it seems to suggest is that a party shouldn’t be put in peril of testifying himself out of court on matters that are merely tangential or non-essential. Therefore, unless the admission goes to the heart of a party’s cause of action or defense, the statement will not bar a party from offering evidence contrary to their own testimony.
3. The statement is deliberate, clear and unequivocal, and the hypothesis of mere mistake or slip of the tongue has been eliminated. Most cases focus on this prong. Unfortunately, they are few in number and most are decades old. Nevertheless, these cases do provide some good examples of the type of testimony which has been held to be insufficiently “deliberate, clear and unequivocal”:
* Opinion testimony by a party on matters which a lay person would not be qualified or competent to testify. Mendoza at 694 (a plaintiff’s opinion about his own physical limitations).
* Facts which are not peculiarly within the declarant’s own knowledge, but are mere impressions of a transaction or an event as a participant or an observer, especially when there is evidence to the contrary. Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 466 (Tex. 1969) (a party’s sworn statement that the other party “foreclosed” on property).
* Inexactitude in testimony. Cranetex, Inc. v. Precision Crane & Rigging, 760 S.W.2d 298, 304 (Tex. App. — Texarkana, 1989) (“on or about” a certain date was equivocal as to the date); Bray v. McNeely, 682 S.W.2d 615 (Tex. App. — Houston [1st Dist.] 1984) (“I think so” was ambiguous).
4. The giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based. There is little to no case law which addresses the application of this prong. However, the Supreme Court has clearly articulated the public policy which underlies this rule, to wit: that it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony. Mendozaat 694.
5. The statement is not also destructive of the opposing party’s theory of recovery. This final prong simply embraces the general rule that applies to all admissions, i.e., that one party’s admissions cannot be used against other parties. Griffin v. Superior Insurance Co., 338 S.W.2d 415 (Tex. 1960).
Given the potential for a party testifying himself out of court, most attorneys should feel at least some degree of trepidation anytime they see their clients raise their hands to take the oath. Worrisome as that may be, however, there is one thing that is even worse than having your client talk himself out of court. And that’s when you do it for him. In the next post, we’ll take a closer look at that.
–Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas