Chapter 9 - § 9.4 EFFECT OF OPENING STATEMENT

• Jurisdiction: Colorado

§ 9.4 EFFECT OF OPENING STATEMENT

Don't say it if you do not want to be bound by it. "Bound" can mean stating facts or making admissions. It can also mean that if you end up unable to prove your point, skilled opposing counsel will make sure the jury knows that you have made a misstatement about what you will be proving.

Colorado

➢ Admissions. Admissions of counsel in an opening statement are binding on a party and can form the basis for directed verdict. LaRocco v. Fernandez, 277 P.2d 232, 235 (Colo. 1954); Skeens v. Kroh, 489 P.2d 347, 348 (Colo. App. 1971). To be considered a judicial admission, the statement made must be deliberate, clear, and unambiguous. When made in an opening statement, the alleged judicial admission must be considered in the context of the entire statement. D.R. Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262 (Colo. App. 2009). Admissions of counsel in opening statements must be unequivocal to have binding effect. Highland Meadow Estates at Castle Peak Ranch, Inc. v. Buick, 994 P.2d 459 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 21 P.3d 860 (Colo. 2001).

➢ Alternate Theories. Counsel can discuss alternative theories of the case in opening and not be bound to one or the other. Eads v. Spoden, 472 P.2d 131, 133 (Colo. 1970); People in the Interest of E.F.C., 490 P.2d 706 (Colo. App. 1971).

➢ Judgment on the Pleadings. Motions for judgment based on opening statements of counsel should be considered with extreme caution; such motions should be granted only where it is clearly apparent that counsel has included in his or her opening statement every element possible to come within the scope of his or her proof, and that having done so, it is manifest that his or her client is entitled to no relief or judgment in his or her favor. Barth v. Burt Chevrolet, Inc., 342 P.2d 637, 640-41 (Colo. 1959); People in the Interest of E.F.C., 490 P.2d 706 (Colo. App. 1971).

➢ Judgment on Pleadings. Trial courts have, with only a few exceptions, been reversed when they have granted motions for judgment on the pleadings or dismissals at the close of opening statement. (Research reveals that the trial court has been overturned on 10 separate occasions.) See, e.g., Shore v. Denver Bldg. & Constr. Trades Council, 263 P.2d 315 (Colo. 1953).
➢ Judgment on Pleadings. The trial court's entering judgment at the end of the plaintiff's opening was affirmed in a declaratory judgment action challenging a municipal

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