Section 3.7 Judicial Admissions During Trial

• Library: Sources of Proof (2014 Ed.)

F. (§3.7) Judicial Admissions During Trial

A lawyer speaks for the client during trial. Counsel’s admissions are those of the client. When those admissions are adverse, determinative of any material fact, and made of record, they achieve the status of a true judicial admission and are binding on the client. Francis v. Richardson, 978 S.W.2d 70, 73 (Mo. App. S.D. 1998) (the plaintiff’s damages were limited by counsel’s admission that the landlord was “not making claim for rent”). This is true regardless of the stage of proceedings at which these admissions occur. Goudeaux v. Bd. of Police Comm’rs of Kansas City, 409 S.W.3d 508, 519 (Mo. App. W.D. 2013) (“‘A statement made during counsel’s opening or closing statements may constitute a judicial admission if it is unequivocal. A judicial admission must be clear and unqualified.’”) (quoting Chilton v. Gorden, 952 S.W.2d 773, 778 (Mo. App. S.D. 1997)); Young v. Frozen Foods Express, Inc., 444 S.W.2d 35, 39 (Mo. App. E.D. 1969).

Theoretically, it is perfectly possible for lawyers to talk themselves and their clients out of court during the opening statement. Chilton, 952 S.W.2d at 778. The key is whether counsel states facts or merely outlines the anticipated evidence. The Empire Dist. Elec. Co. v. Coverdell, 344 S.W.3d 842, 852 (Mo. App. S.D. 2011). But courts are often liberal in protecting litigants from this catastrophe. In one case, the court went so far to protect the client that it held that an adverse statement of fact in an opening statement was merely an expression of the attorney’s personal opinion and therefore not a judicial admission. In re Condemnation of Prop. for Park in City of St. Joseph, 263 S.W. 97, 99 (Mo. banc 1924).

In general, however, a clear and unequivocal admission of fact is binding on the party making the admission. See:

· McCarthy v. Wulff, 452 S.W.2d 164, 167 (Mo. 1970)

· DeArmon v. City of St. Louis, 525 S.W.2d 795, 799 (Mo. App.

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