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."