Jeff S. Korek and Abraham Z. Melamed
Jeff S. Korek and Abraham Z. Melamed ()

In 1982, a college undergraduate student named Gregory Watson discovered that a constitutional amendment that was proposed in 1789 along with the amendments that eventually became the Bill of Rights, could become the 27th Amendment of the U.S. Constitution more than 200 years later, if enough states ratified it. Watson proposed this idea in a paper for a government class at the University of Texas at Austin. His professor gave him a C, calling this idea a “dead letter issue” and saying it would never become a part of the constitution. It took a decade, but eventually, Watson’s self-financed campaign to have the amendment ratified was successful, and the 27th Amendment was adopted in 1992. The amendment reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Since then, the 27th Amendment has received very little publicity, except for the occasional news story about Watson’s personal quest to get it passed. But in 2014, during the fight in Congress over the federal government’s budget, GOP House leaders proposed linking congressional pay to the budget debate, and it didn’t take long for journalists and academics to recall the 27th Amendment. Critics were quick to point out that withholding pay, even temporarily, would “vary” the compensation for Congress members, and in their opinion, presented a direct violation of the 27th Amendment. Eventually, a short-term budget compromise was reached and the bill’s validity under the 27th Amendment was never tested. Recently, 35 years after his C paper, the University of Texas at Austin changed Watson’s grade to an A.

You may be asking, what does this interesting and inspirational story have to do with binding trial attorneys by their opening statements, as this article’s title references? The answer is that although the theory that follows is rooted in a U.S. Supreme Court decision more than 130 years old, it is a decision that has never been overturned, and is aged like a fine wine, ready to be trotted out and showcased in an argument that attorneys should be bound at trial by their opening statements. The case is Oscanyan v. Arms, 103 U.S. 261 (1881), but more on that later.

For trial attorneys there are many decisions that can be made before a jury is even selected. Should one call this expert to testify? Should a client charged with a crime testify in their case? Should one object at all, and if so, how often, and in what manner? But there are also a number of unknown factors that can arise during the course of the trial, which may require revisions to the attorney’s case-map. Perhaps a witness says something damaging which was unexpected. Perhaps the defense produced a harmful document, which was overlooked in the thousands of pages of document production. Maybe the judge rules on a motion in limine on which he or she reserved judgment and it requires a change in the attorney’s trial strategy. As a result, sometimes an attorney will promise a jury something in their opening statement, which they do not end up delivering. Some attorneys may even strategically include information in their opening statement, on which they have no intention of ever delivering. In such a circumstance, the question arises: Should the court be able to bind these attorneys, and in turn their clients, by the opening statements?

Case Law

What is clear is that in many circumstances the courts in New York have not hesitated to bind an attorney and their client by statements made by the attorney in a judicial proceeding. For example, in Michigan National Bank v. Oakland, 89 N.Y.2d 94 (1996), the Court of Appeals held that “[i[nformal judicial admissions are recognized as 'facts incidentally admitted during the trial or in some other judicial proceeding, as in statements made by a party as a witness, or contained in a deposition, a bill of particulars, or an affidavit." For instance, a formal judicial admission in one action "may become an admission in the evidentiary sense in another action, and would be classified as an informal judicial admission in the later action." However, the Court of Appeals did caution that, "to be sure, they are not conclusive, though they are "evidence" of the fact or facts admitted."

Similarly, in State Ex. Rel. H. v. P., 90 A.D.2d 434 (1st Dept. 1982), the Appellate Division, First Department, explained that, "a statement in open court conceding a fact, if made with sufficient formality and conclusiveness, constitutes a judicial admission which is admissible even when made by a party's attorney" (internal citations omitted).

This principle has its origin in early Supreme Court jurisprudence. In Oscanyan, perhaps the earliest case on the subject, and the case referenced above, the Supreme Court held that, "in 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. They may limit the demand made or the set-off claimed. Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court's procedure equally as if established by the clearest proof." This principle is so strong, in fact, that "if in the progress of a trial, either by such admissions or proof, a fact is developed which must necessarily put an end to the action, the court may, upon its own motion, or that of counsel, act upon it and close the case." Similar to Michigan National Bank v. Oakland, the Supreme Court did caution that, "[o]f course, in all such proceedings nothing should be taken, without full consideration, against the party making the statement or admission. He should be allowed to explain and qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give each directions as will dispose of the action.” As the court further explained, “[h]ere there was no unguarded expression used, nor any ambiguous statements made. The opening counsel was fully appraised of all the facts out of which his client’s claim originated, and seldom was a case opened with greater fullness of detail.”

Analysis and Application

Perhaps the most critical language from Oscanyan is the court’s statement that “the language of this court in numerous cases is in accordance with these views, though used with reference to directing a verdict after evidence is received. But, as already stated, it cannot make any difference as to the power of the court whether the facts be developed by the evidence or be admitted by counsel.”

This principle has also been applied in the context of admissions made by counsel in a letter to the court regarding settlement, as the Second Department case of Bellino v. Bellino Constr. Co., 427 N.Y.2d 303 (2d Dept. 1980) makes clear. In Bellino, the court, citing Burdick v. Horowitz, 56 A.D.2d 882 and People v. Rivera, 58 A.D.2d 147, affd 45 N.Y.2d 989), held that “[a]dmissions by counsel, as by any other agent, are admissible against a party provided that the statements had been made by the attorney while acting in his authorized capacity.” Thus, where counsel’s admission at bar was made in a letter sent in an attempt to settle the dispute prior to trial, and settlement negotiations are unquestionably within the counsel’s authority, “this statement was properly admissible into evidence, although not necessarily conclusive against plaintiffs.” Bellino, 427 N.Y.2d 303; see also People v. Rivera, 45 N.Y.2d 989 (2002).

So, take for example a medical malpractice failure to diagnose case, in which a woman has gallbladder surgery in a hospital, and despite multiple red flags that arise during the surgery which indicate that she has a deadly cancer, the doctor fails to diagnose or otherwise advise her about the signs of cancer. During the deposition of the doctor, he testified that he did not inform the plaintiff of the red flags because he did not believe that they were in fact red flags and he also told the plaintiff to follow up with him in his office after the surgery and she did not. However, during trial, the lawyer for the doctor, in his opening statement, says that the reason the doctor did not tell the plaintiff about the red flags was because it was coming up on Christmas and the holiday season and he did not want to ruin her holidays. Knowing this statement conflicts with the doctor’s direct testimony, the plaintiff’s attorney asks the judge for permission to comment on this conflicting testimony in his closing statement. The judge agrees that the statements were conflicting, but that what the lawyer says in his opening statement is not in fact evidence. Plaintiff’s counsel should set out to brief this very issue, citing to the case law above, including the finely aged case of Oscanyan, and argue that he should be allowed to comment on the conflict because the statements made in opening are judicially binding admissions.

Should the judge decide to hold off on ruling on the issue until closing arguments, one smart way to achieve essentially the same result would be, during plaintiff’s counsel’s cross-examination of the doctor, to ask the doctor if he had heard what his attorney said in his opening statement about the holidays, and then to say “but that is not true is it? Can we agree that it had nothing to do with the holiday season?” The doctor will then have to confirm that his attorney’s statement was not true, or risk being cross-examined on his conflicting deposition testimony. Best case scenario though, is perhaps the judge will in fact agree with the case law above, and will rule that plaintiff’s counsel can in fact directly comment on the conflict, and this will play a big role in weakening the credibility of the defendant’s case. This scenario is derived from a case which Jeff Korek, one of the authors of this article, recently tried. In this case, the judge held off on ruling on the issue until closing arguments. Jeff grilled the doctor as described above, and got the desired admission, but the judge never ended up ruling on the legal issue because the case settled before closing arguments were made.


Ultimately, what we can learn from this example, and from the case law, is that statements made by an attorney in a formal legal setting may in fact be binding on their clients. So, before making a representations to the court through the course of litigation, an attorney should take a moment to ensure that it is in fact the complete truth, and that it will not come back to haunt him in the future. Similarly, it is good practice for trial attorneys to keep an eye out for attorneys who make statements that conflict with other evidence in the record, and be prepared to cite the case law above and argue that they are binding admissions, and they should be allowed to comment on the conflicting statements throughout trial. Regardless of whether the theory takes its origins from a case more than 130 years old, if Gregory Watson could get the 27th Amendment ratified more than 200 years later, an attorney should be able to successfully argue that a 130-year-old Supreme Court decision that has never been overturned is still good law, and grounds for binding trial attorneys by their opening statements.