Anything you say can and will be used against you in a court of law. Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.
The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court. And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.
It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission. Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983). As long as the admission stands unretracted, the fact admitted is accepted as true. Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979). As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal. Id.
Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:
- Remarks at Charge Conferences: Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position. American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
- Argument at Trial: Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law. Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).
- Stipulations: Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds. Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).
Perhaps the biggest trap for the unwary is in summary judgment proceedings. While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein. Judicial admissions contained in pleadings may be used to support a summary judgment. Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).
The easiest trap to avoid is typographical errors. In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law. 669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).
Fortunately, there are some safe harbors:
- Law vs. Fact: An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded. Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967). Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”)
- Impressions vs. Facts: Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission. National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
- References: Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true. American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987). Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument. Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
- Damage Control: By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission. However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest. Kirk v. Head, 152 S.W.2d 726 (Tex. 1941). This is very tricky business, however. While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will. Texas Processed Plastics at 416.
Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble. Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney. There can be no judicial admission under those circumstances.”)
— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas