                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2020 UT 63


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                                 LUIS LUNA,
                                 Petitioner,
                                       v.
                               MARIA LUNA,
                               Respondent.


                              No. 20190396
                           Heard May 21, 2020
                          Filed August 20, 2020

               On Certiorari to the Court of Appeals

                    Third District, Salt Lake
              The Honorable Judge James D. Gardner
                         No. 160903176

                                 Attorneys:
           Daniel F. Bertch, Salt Lake City, for petitioner
     Joseph Joyce, Joel D. Taylor, South Jordan, for respondent

         JUSTICE PEARCE authored the opinion of the Court,
      in which JUSTICE HIMONAS and JUSTICE PETERSEN joined.
    ASSOCIATE CHIEF JUSTICE LEE authored a dissenting opinion,
            in which CHIEF JUSTICE DURRANT joined.

   JUSTICE PEARCE, opinion of the Court:
                           INTRODUCTION
    ¶1 Maria Luna and Antonio Arias were involved in a car
accident in a Salt Lake City intersection. Luis Luna, a passenger in
his sister Maria‘s car, was injured as a result. Luis sued Maria and
Antonio. Maria moved for summary judgment based, in part, on
Luis‘s testimony that Maria had entered the intersection on a green
light. Luis sought to defeat summary judgment with Antonio‘s
testimony that he had the green light. The district court refused to
                            LUNA v. LUNA
                        Opinion of the Court

allow Luis to create a genuine issue of material fact by introducing
evidence that contradicted his own sworn deposition testimony. The
district court reasoned that Luis‘s statement should be considered a
judicial admission not capable of being rebutted by other evidence.
The court of appeals agreed.
   ¶2 Under the approach the district court employed, and the
court of appeals endorsed, if Luis testified the light was green, and
Maria agreed, it was green. Even if Luis could offer traffic camera
video showing that the light was red, and could buttress that video
with the testimony of twenty-seven nuns on their way home from
Mass attesting that the light was red, Luis could still not defeat
summary judgment and let a trier of fact decide what color the light
really was.
    ¶3 This is ultimately a policy question. Although we
understand why the district court and court of appeals would credit
policies of efficiency and the seeming unseemliness of allowing a
party to contradict her own testimony, we conclude that the
truth-finding function of the trial process deserves more weight than
the lower courts ascribed to it. We reverse and remand.
                          BACKGROUND1
    ¶4 We appreciate the court of appeals‘ recitation of the facts in
its opinion. See Luna v. Luna, 2019 UT App 57, 442 P.3d 1155. We
adopt many of those facts.
   ¶5 Maria was driving her brother, Luis, to work, when both she
and Antonio entered an intersection and collided. Id. ¶ 2. As a result,
Luis, who was sitting in the passenger‘s seat, was injured. Id.
Assuming the fault lay with one of the drivers and not Salt Lake
City‘s traffic system, Luis brought a negligence suit against Maria
and Antonio. Id. Luis alleged either Maria or Antonio ran a red light
and that both had acted negligently in not yielding. Id.
   ¶6 During discovery, Antonio stated that he had a green light,
giving him the right of way at the intersection. Id. ¶ 6. Maria stated
that she also had a green light. Id. ¶ 3. In two depositions, Maria‘s
counsel asked Luis if he saw the color of the traffic light as he and
_____________________________________________________________
   1 ―Under Utah Rule of Civil Procedure 56, we view any facts and
any reasonable inferences ‗in the light most favorable to the party
opposing summary judgment.‘‖ Fire Ins. Exch. v. Oltmanns, 2018 UT
10, ¶ 7, 416 P.3d 1148 (citation omitted).



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Maria were entering the intersection. Luis responded, ―[w]e had the
right-of-way.‖ As a follow up, Luis stated that he saw the color of
the light as they entered the intersection and it was green. Id. When
asked how far away he was from the intersection when he first
noticed the color of the traffic light, Luis testified that he did not
know, ―it all happened suddenly‖ but the light was ―green when
[they] went through it.‖
   ¶7 Maria‘s counsel also asked Luis if he had ―any problems
with the way [Maria] operated her vehicle on the day of the
accident.‖ Id. ¶ 5. Luis responded, ―No.‖ Id. And when asked to
confirm ―that [he] had no problems with the way [Maria] operated
her vehicle on the day of the accident,‖ Luis responded, ―Yes.‖ Id.
    ¶8 Luis settled with Antonio, and Antonio was dismissed from
the case. Id. ¶ 6. Maria moved for summary judgment arguing there
was no longer a genuine issue as to any material fact because both
she and Luis agreed that the light was green when Maria entered the
intersection. Id. Luis wanted to defeat summary judgment with
Antonio‘s testimony that the light was green when he entered the
intersection—which would mean it was red when Maria entered. Id.
    ¶9 The district court requested supplemental briefing on
whether Luis‘s deposition statements constituted judicial
admissions. Id. ¶ 7. A judicial admission is an admission that a party
cannot rebut with contrary evidence. See Judicial Admission, BLACK‘S
LAW DICTIONARY (11th ed. 2019). In contrast, an evidentiary
admission can be rebutted. Luis acknowledged he had consistently
testified the light was green but contended that a jury should have
the opportunity to disregard his testimony in favor of Antonio‘s
version of the story. Luna, 2019 UT App 57, ¶ 7. The district court
determined Luis‘s statements were judicial admissions that he could
not contradict. Id. It then granted summary judgment in favor of
Maria. Id.
   ¶10 Luis appealed the district court‘s grant of summary
judgment. Id. ¶ 9. The court of appeals affirmed the district court‘s
decision and agreed Luis‘s statements about the color of the light
constituted a judicial admission. Id. ¶¶ 22, 29.
    ¶11 The court of appeals acknowledged that whether a party‘s
deposition statement could constitute a judicial admission presented
an issue of first impression in Utah. Id. ¶¶ 15–16. It referenced two
approaches other jurisdictions have employed to address this issue.
Id. ¶ 16. One approach is to ―treat the sworn testimony of a party like
that of any other witness, allowing parties to contradict their own

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statements with the testimony of other witnesses.‖ Id. The other is to
―consider a party‘s sworn deposition testimony to be binding on that
party, provided that the statements are unequivocal and made about
facts within the party‘s knowledge.‖ Id.
   ¶12 The court of appeals preferred the second option for two
reasons. Id. ¶¶ 17–19. First, it determined that having a trial when
there was no dispute about a particular issue between litigants
would waste judicial resources. Id. ¶¶ 17–18. Second, the court of
appeals opined that categorizing deposition statements as judicial
admissions would promote justice by both discouraging perjury and
by holding litigants to their deposition testimony. Id. ¶ 19.
    ¶13 Citing those policy-based rationales, the court of appeals
determined that ―a party‘s sworn deposition statements, provided
certain factors are present, can constitute binding judicial
admissions.‖ Id. ¶ 22. The court of appeals then established four
criteria that a party would have to show before a court could
categorize a party‘s testimony as a judicial admission: 1) ―the
statement is made under oath during the course of the judicial
proceeding;‖ 2) ―the statement is clear and unequivocal;‖ 3) ―the
statement is about a factual matter within the party‘s personal
knowledge;‖ and 4) ―giving binding effect to the statement would be
consonant‖ with the underlying policies. Id. ¶ 28.
    ¶14 Applying this standard, the court of appeals analyzed Luis‘s
statements that Maria had a green light and that he ―had no
problem‖ with the way Maria operated the vehicle. Id. ¶ 29. The
court of appeals determined that the first statement qualified as a
judicial admission, but the second did not. Id.
   ¶15 Luis petitioned for certiorari. He asks us to review whether
the court of appeals erred in adopting the judicial admission
doctrine.2 We granted certiorari.
_____________________________________________________________
   2  We also granted certiorari on the question of ―[w]hether the
Court of Appeals erred in concluding Respondent was entitled to
summary judgment on the issue of whether [Maria] negligently
failed to take [‗]reasonable precautions‘ or ‗reasonable care‘ to ‗avoid
a collision.‘‖
    The judicial admission that the light was green for Maria formed
the factual predicate for this argument; that is, Luis argued that
summary judgment was inappropriate even if the district court
found no genuine issue of material fact on the semaphore‘s color.
                                                        (continued . . .)

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               ISSUE AND STANDARD OF REVIEW
    ¶16 Luis asks us to consider whether the court of appeals erred
in adopting a rule that a party‘s deposition statements may be
treated as binding judicial admissions.
    ¶17 ―‗On a writ of certiorari, we review the decision of the court
of appeals, not that of the district court, and apply the same
standard[s] of review used by the court of appeals. We conduct that
review for correctness, ceding no deference to the court of appeals.‘‖
State v. Wilder, 2018 UT 17, ¶ 15, 420 P.3d 1064 (alteration in original)
(citation omitted). And when reviewing a motion for summary
judgment under Utah Rule of Civil Procedure 56, ―we view any facts
and any reasonable inferences ‗in the light most favorable to the
party opposing summary judgment.‘‖ Fire Ins. Exch. v. Oltmanns,
2018 UT 10, ¶ 7, 416 P.3d 1148 (citation omitted).
   ¶18 Although a correctness standard of review requires us to
determine whether the court of appeals erred, we note that ―err‖ is
something of a misnomer in this context. The question presented to
us is one of pure policy and a classic example of this court being
right by virtue of being last.
                              ANALYSIS
                   I. The Court of Appeals‘ Opinion
    ¶19 The court of appeals commenced its analysis by correctly
stating that ―a party‘s admission of fact in a pleading is normally
treated as a conclusive admission that the party is not later permitted
to contradict, even with evidence from other sources.‖ Luna v. Luna,
2019 UT App 57, ¶ 15, 442 P.3d 1155; see also Baldwin v. Vantage Corp.,
676 P.2d 413, 415 (Utah 1984) (―An admission of fact in a pleading is
a judicial admission and is normally conclusive on the party making
it.‖).3 The court of appeals then correctly noted that no Utah


Because we determine the court of appeals erred in adopting the
judicial admission doctrine in this circumstance and reverse the
grant of summary judgment, we need not address this additional
question.
   3 The key word in that phrase, however, is normally. We have
noted that this is not an absolute rule and a trial court can relieve a
party from the consequences of a judicial admission. See Baldwin, 676
P.2d at 415 (determining the defendant may have ―negligently
admitted‖ a fact in answering the complaint but the parties‘ conduct
                                                       (continued . . .)

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appellate court has decided if a party can be ―conclusively held‖ to
the statements she makes in a deposition. Luna, 2019 UT App 57,
¶ 15.
    ¶20 The court of appeals examined two basic approaches other
jurisdictions have used when considering the consequence of an
admission made during a party‘s deposition. Id. ¶ 16. Some courts
―treat the sworn testimony of a party like that of any other witness,
allowing parties to contradict their own statements with the
testimony of other witnesses.‖ Id. Other jurisdictions ―consider a
party‘s sworn deposition testimony to be binding on that party,
provided that the statements are unequivocal and made about facts
within the party‘s knowledge.‖ Id. The court of appeals determined
that the second approach would be the ―better rule‖ for two reasons.
Id. ¶¶ 16–22.
    ¶21 First, it opined that this approach was a better use of judicial
resources because it does not allow a case to go to trial when the
parties do not disagree about the matter to be tried. Id. ¶ 17. The
court of appeals stated that if the parties ―do not actually have a
dispute about a particular issue, there seems little point in bringing
the power of the judicial system to bear to weigh in on the matter.‖
Id. ¶ 18.
    ¶22 Second, the court of appeals cautioned that ―there is
something unjust about allowing a litigant to convene a trial so that a
jury can determine if the facts are other than what the litigant swears
they are.‖ Id. ¶ 19. The court of appeals reasoned that this created an
incentive to commit perjury. Id. It was also concerned that allowing
this would ―open the door for litigants to argue that they should
recover despite their own sworn statements to the contrary.‖ Id.
    ¶23 Based on these considerations, the court of appeals adopted
the position that ―a party‘s sworn deposition statements, provided
certain factors are present, can constitute binding judicial
admissions.‖ Id. ¶ 22. The court outlined four factors: 1) whether the
statement is made under oath during a judicial proceeding;
2) whether the statement is ―clear and unequivocal;‖ 3) whether ―the
statement is about a factual matter within the party‘s personal
knowledge;‖ and 4) whether considering the statement as a judicial



throughout the litigation ―showed that this question was a material
issue for the judge to determine‖).



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admission would be consistent with the underlying policies. Id.
¶¶ 23–28.
    ¶24 The court of appeals applied these factors to two categories
of statements Luis made during his deposition: 1) statements that the
traffic light was green and 2) statements that he ―had no problem
with‖ how Maria operated the vehicle. Id. ¶¶ 29–37. It determined
Luis‘s statement about the traffic light met all four requirements and
was therefore a judicial admission. Id. ¶ 30. Notably, the court of
appeals concluded that Luis‘s testimony was unequivocal and that
he was ―adamant‖ that the light was green. Id. ¶¶ 30–31. It noted
that Luis never expressed ―the slightest doubt or equivocation about
the color of the light‖ and he did not try to correct or amend his
deposition testimony. Id. ¶ 31.
    ¶25 But the court of appeals held that Luis‘s statement that he
―had no problem‖ with Maria‘s driving did not qualify as a judicial
admission. Id. ¶¶ 34–35. The court opined that Luis‘s statement was
not unequivocal and that the questioning that solicited the response
was unclear. Id. ¶ 36. Moreover, Luis‘s testimony concerned a matter
of opinion and not about factual matters like if Maria was speeding,
watching the road, or talking on her cellphone. Id. ¶ 37.
    ¶26 The court of appeals ultimately concluded that Luis‘s
admission that Maria entered the intersection under a green light
justified the district court‘s grant of summary judgment. Id. ¶ 42.4




_____________________________________________________________
   4  To be clear, the court of appeals recognized that a plaintiff
might be able to show that a driver was negligent even when
entering an intersection on a green light and analyzed whether Luis
had forwarded sufficient evidence of Maria‘s negligence to survive a
motion for summary judgment. Luna, 2019 UT App 57, ¶¶ 39–40.
The court of appeals agreed with the district court that Luis had not
and affirmed. Id. ¶ 42. As noted above, Luis petitioned for certiorari
on this question as well, but we need not reach it in light of our
conclusion that Luis can introduce evidence that contradicts his
testimony.



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                        II. Judicial Admissions
    ¶27 A judicial admission is a ―formal waiver of proof that
relieves an opposing party from having to prove the admitted fact.‖
Judicial Admission, BLACK‘S LAW DICTIONARY (11th ed. 2019). It also
―bars the party who made the admission from disputing it.‖ Id. The
effect of a judicial admission is that once it has been made, the party
cannot present any evidence that contradicts that statement. See, e.g.,
Condas v. Condas, 618 P.2d 491, 495–96 (Utah 1980); see also Garland v.
Fleischmann, 831 P.2d 107, 111 (Utah 1992) (―When an admission is
treated as a matter of pleading, excusing the pleader‘s opponent
from offering evidence on the point admitted, the admission is
necessarily conclusive as to the facts admitted. It precludes the
pleader from denying obligations implied by law from such
admitted facts.‖); Bilesky v. Shopko Stores Operating Co., LLC, 338 P.3d
76, 80 (Mont. 2014) (―The main characteristic of a judicial admission
is the conclusive effect upon the party making the admission; no
further evidence can be introduced by the party making the
admission to prove, disprove, or contradict the admitted fact.‖). This
doctrine is most often applied to an admission of fact in a pleading
or a prior judicial proceeding, but even that is not an absolute rule.
See, e.g., Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984).
    ¶28 The policy underlying the judicial admission doctrine
provides that a party should not be able to plead or admit certain
facts and then later present contradicting evidence. This limitation
helps define the factual issues that are to be proved at trial. See
2 ROBERT P. MOSTELLER ET AL., MCCORMICK ON EVIDENCE § 257 (8th
ed. 2020) (hereinafter MCCORMICK ON EVIDENCE). The courts look to
the ―pleadings as part of the record in passing on the relevancy of
evidence and to determine the issues to be submitted to the jury. For
these purposes, the pleadings . . . are used as judicial and not as
evidentiary admissions, and they are conclusive until withdrawn or
amended.‖ Id. (footnotes omitted).
   ¶29 Until the court of appeals‘ decision in this matter, Utah law
had not addressed whether, and to what extent, those policies
should apply to a party‘s deposition testimony. Other states have,
however. And commentators have employed a tripartite taxonomy
to describe what those states have done. See MCCORMICK ON
EVIDENCE § 258.
   ¶30 The first approach is to treat a party‘s testimony like that of
any other witness. Id. This means that the party making the
admission is free to introduce contradictory evidence. Id. For


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instance, in Guenther v. Armstrong Rubber Company, 406 F.2d 1315 (3d
Cir. 1969), a plaintiff testified that a ―black wall‖ tire had exploded
and injured him. Id. at 1316–17. However, the tire marked as a trial
exhibit was a ―white wall‖ tire. Id. at 1316. The district court granted
the defendant‘s motion for directed verdict. Id. The Third Circuit
determined ―a party is regarded as not bound by his own testimony
where there is contradictory evidence or circumstances which the
trier of facts might fairly believe.‖ Id. at 1318 (citation omitted). In
this circumstance, a jury should determine whether the plaintiff‘s
testimony merits belief. Accord Kanopka v. Kanopka, 154 A. 144, 146
(Conn. 1931) (determining plaintiff was not bound by her
testimony); Alamo v. Del Rosario, 98 F.2d 328, 330–31 (D.C. Cir. 1938)
(determining jury could believe other witnesses and plaintiff was not
estopped by his own testimony); Jerominski v. Fowler, Dick & Walker,
93 A.2d 433, 435 (Penn. 1953) (―Where there is an obvious possibility
that a plaintiff may be mistaken, as may any other witness, he is not
concluded thereby notwithstanding other witnesses give a different
version.‖ (citation omitted) (internal quotation marks omitted)).
    ¶31 Second, some jurisdictions have determined that a party‘s
testimony is ―not conclusive against contradiction except when
testifying unequivocally to matters‖ in her ―peculiar knowledge.‖
MCCORMICK ON EVIDENCE § 258. This may include testimony about
subjective facts, like the party‘s own knowledge or motivation. Id.
For example, a federal district court in New Mexico concluded that a
supervisor‘s testimony regarding his motivation for terminating the
plaintiff ―was peculiarly within his knowledge, and no amount of
testimony to the contrary by other witnesses could overcome his
admission‖ about his decision to terminate the plaintiff. Brillhart v.
Phillips Elec. N. Am. Corp., 938 F. Supp 742, 746 (D.N.M. 1996). It
determined that ―[w]hen a party testifies to a fact peculiarly within
his knowledge, the testimony is conclusive on that issue unless the
statement is modified or explained by additional testimony of that
party.‖ Id. at 744. It further held that the testimony ―is conclusive
even if other witnesses contradict the party and testify to facts that
would otherwise permit a verdict in the party‘s favor.‖ Id.; see also
Monsanto Chem. Co. v. Payne, 354 F.2d 965, 969 (5th Cir. 1966)
(determining the plaintiff‘s testimony about his qualifications and
details regarding his actions the day of the incident was sufficient to
support a judgment notwithstanding the verdict); Findlay v. Rubin
Glass & Mirror Co., 213 N.E.2d 858, 861 (Mass. 1966) (concluding that
since the plaintiff‘s testimony ―concerns the extent of his own
knowledge, the plaintiff is bound by it‖).


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    ¶32 A third approach treats a party‘s disserving testimony as a
judicial admission, conclusive on that issue, and the party cannot
introduce any contradictory evidence. MCCORMICK ON EVIDENCE
§ 258. For example, the Mississippi Supreme Court has held that
when a party ―in full possession of his mental faculties‖ testifies
about a material fact ―as distinguished from an estimate or
approximation,‖ the testimony is binding on the party ―unless he
subsequently gives some reasonable explanation of the testimony as
having been the result of mistake, lapse of memory, or
misunderstanding.‖ Taylor v. Williams, 190 So. 2d 872, 874 (Miss.
1966).
    ¶33 Commentators have noted that this third approach, ―often
comes with a number of qualifications and exceptions.‖ MCCORMICK
ON EVIDENCE § 258. For example, the Virginia Supreme Court
detailed that a party‘s damaging ―testimony must be considered in
the light of an explanation of such statement made in a later part of
his testimony.‖ Virginia Elec. & Power Co. v. Mabin, 125 S.E.2d 145,
148 (Va. 1962). And it held that the admission ―should be balanced
against a clarification of the admission, offered when the litigant is
on redirect examination.‖ Id. But in the end, ―it is generally for the
jury to determine whether it will accept such explanation or
clarification.‖ Id.
    ¶34 Additionally, the rule may not apply when the party‘s
testimony is ―attributable to inadvertence,‖ ―misuse of language,‖ is
―uncertain‖ or ―an estimate or opinion,‖ or ―relates to a matter‖
about ―which the party could easily have been mistaken.‖
MCCORMICK ON EVIDENCE § 258.
    ¶35 As described above, the court of appeals appears to have
elected a version of this third option. It did so reasoning that this
option would promote judicial efficiency and avoid injustice. Luna,
2019 UT App 57, ¶¶ 16–22. While we credit the court of appeals‘
consideration of the policy concerns, we weigh the policies
differently.
                III. A Party‘s Deposition Testimony Is
                       Not a Judicial Admission
    ¶36 We agree with the commentators that the first approach is
―preferable in policy and most in accord with the tradition of [a] jury
trial.‖ MCCORMICK ON EVIDENCE § 258; see also Keller v. United States,
58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (―When a party testifying at
trial or during a deposition admits a fact which is adverse to his



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claim or defense, it is generally preferable to treat that testimony as
solely an evidentiary admission.‖).
   ¶37 Commentators also note that
       a general rule of conclusiveness necessitates an
       elaboration of qualifications and exceptions, which
       represents an unfortunate transfer to the appellate
       court of some of the traditional control of the jury by
       the trial judge, or in a nonjury case of the judge‘s
       factfinding function. Also, the moral emphasis is
       wrong. In the early cases where the rule of
       conclusiveness first appeared, judges were outraged by
       apparent attempts by parties to play fast and loose
       with the court. However, this is far from being the
       typical situation of the party testifying to disserving
       facts. Instead of the unscrupulous party, it is either the
       one who can be pushed into an admission by the
       ingenuity or persistence of adverse counsel or the
       unusually candid or conscientious party willing to
       speak the truth regardless of its consequences who is
       penalized by the rule of conclusiveness.
MCCORMICK ON EVIDENCE § 258 (footnotes omitted).
    ¶38 We agree. There is benefit in eschewing a rule that would
bar a party from introducing credible contradictory evidence. And
we prefer permitting the finder of fact to assess the credibility of
such evidence. See id.; see also Guenther v. Armstrong Rubber Co., 406
F.2d 1315, 1317 (3d Cir. 1969) (―In other words, the law recognizes
the fact that parties, as well as other witnesses, may honestly mistake
the truth, and requires juries to find the facts by weighing all the
testimony, whatever may be its source.‖ (citation omitted)); id. (―[I]n
other words, a party is regarded as not bound by his own testimony
where there is contradictory evidence or circumstances which the
trier of facts might fairly believe.‖ (quoting Jerominski v. Fowler, Dick
& Walker, 93 A.2d 433, 435 (Pa. 1953)). And in the case of a motion for
summary judgment, the court should be allowed to assess the
evidence before it, including anything contradicting a party‘s
testimony, to see if there is a genuine issue of a material fact.
    ¶39 In other words, we believe that a party‘s deposition
testimony is best categorized as an ordinary evidentiary admission
that can be contradicted with other appropriate evidence.
   ¶40 We can understand why the court of appeals credited the
policies favoring treating unequivocal testimony as a judicial

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admission. The court of appeals noted that judicial resources are
finite and that permitting ―cases to proceed to trial when the two
parties do not disagree about the matter to be tried is a poor use of
our limited judicial resources.‖ Luna v. Luna, 2019 UT App 57, ¶ 17,
442 P.3d 1155.
    ¶41 We part ways with the court of appeals in a couple of
respects. First, it is not correct to say that the rule we adopt would
permit cases to go to trial where the ―parties do not disagree about
the matter.‖ See id. When a party seeks to contradict her deposition
testimony with other credible evidence, she does not agree about the
matter. We are, in essence, allowing a party to say, ―I know what I
said, but I understand that there is other evidence which shows that
my recollection was incorrect.‖ That party then disagrees about the
matter, and if the additional evidence is sufficient to create a genuine
issue of material fact, the question should go the trier of fact.
    ¶42 Although we agree with the court of appeals‘ second
concern—that judicial resources should be preserved—we are not
convinced that the rule it announced will prove superior at
conserving them. To the contrary, we predict that the rule the court
of appeals adopted would lead to increased litigation over whether
the deposition statement actually qualifies as a judicial admission.5 It
does not take much imagination to anticipate the motion practice
over whether ―the statement is clear and unequivocal‖ and whether
―giving binding effect to the statement would be consonant with the
policies underlying the ‗judicial admission‘ rule.‖ Id. ¶¶ 23–28.6


_____________________________________________________________
   5  The dissent disagrees and claims our rule will lead to more
litigation and increased costs or will just ―kick the can down the
road.‖ Infra ¶ 72. Admittedly, both we and the dissent are
attempting to predict litigation behavior with little besides our
practical litigation experience to guide us. For the reasons expressed,
we believe that the rule we adopt will lead to less ancillary motion
practice and be a more fair and efficient use of resources. But we take
comfort in the fact that if further experience reveals that we have
misaligned the incentives, we can adjust them by amending our
rules.
   6 Moreover, there exists a natural disincentive to try cases where
the evidence that contradicts a party‘s own deposition testimony is
weak. Placing that party on the stand will expose them to the type of
                                                       (continued . . .)

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   ¶43 The court of appeals also was concerned ―there is something
unjust about allowing a litigant to convene a trial so that a jury can
determine if the facts are other than what the litigant swears they
are.‖ Id. ¶ 19. We think the larger injustice would be to deny a party
the opportunity to use credible evidence to let the trier of fact
determine what actually occurred.
    ¶44 ―[T]he processes of law have only one legitimate objective,
to seek out the truth and to do justice.‖ State v. Kent, 432 P.2d 64, 67
(Utah 1967). The court ―is a place to determine the truth—the facts of
a particular case, to review the law and act accordingly, all that
justice may prevail.‖ Id.; see also Conagra, Inc. v. Nierenberg, 7 P.3d
369, 379 (Mont. 2000) (―The truth of the case depends on a
comparison of what all the witnesses say and all the circumstances
indicate. A rule which binds a party to a particular statement uttered
on the stand becomes an artificial rule. It is out of place in dealing
with testimony.‖ (citation omitted)).
    ¶45 To repeat the hypothetical we discussed in our introduction,
we see no compelling policy reason to prevent someone who
genuinely believes that the light was green, and testifies honestly
about his belief, from introducing traffic camera footage and the
testimony of twenty-seven nuns returning from Mass that
demonstrate the light was red. Under the court of appeals‘ approach,
we would be saying that, as a judicial system, we should pretend
that the traffic camera video does not exist.7 Although justice is oft



cross-examination that most of us dreamed of conducting but rarely
did.
   7  The rule we adopt also acknowledges the reality that human
memory is very slippery. By way of example, there are hundreds of
people who believe that sometime in the 1990s, they watched a
movie called ―Shazaam‖ that starred the comedian Sinbad. See
Amelia Tait, The Movie that doesn’t exist and the Redditors who think it
does,    NEWSTATESMAN         (Dec.     21,   2016),    https://www.
newstatesman.com/science-tech/internet/2016/12/ movie-doesn-t-
exist-and-redditors-who-think-it-does. In this movie, Sinbad played
a genie. Id. If placed under oath, these people would testify that they
have a clear recollection of watching Sinbad in Shazaam. The
problem with that is that Sinbad never made a movie called
Shazaam and never starred in a movie in which he played a genie.
See Dan Evon, Did Sinbad Play a Genie in the 1990s Movie ‘Shazaam’?,
                                                        (continued . . .)

                                     13
                            LUNA v. LUNA
                         Opinion of the Court

represented as blind, we see no reason why justice would require us
to not see what we know to exist in this circumstance.
    ¶46 Finally, the court of appeals expressed concern that a party
may be tempted to commit perjury. Luna, 2019 UT App 57, ¶ 19. The
court of appeals‘ reasoning is not immediately apparent. It would
seem that the incentive to commit perjury is stronger where a party
cannot, under any circumstances, relieve themselves from the
consequence of honest but case-damaging testimony. If a party is
concerned about how her testimony may be used to prevent the
introduction of other evidence, she may be inclined to testify in a less
than truthful manner. A better rule is one that incentivizes a party to
testify to the facts as she remembers and any discrepancies or issues
as to a material fact can be sorted by the factfinder. This better
comports with our desire of ―ascertaining the truth and securing a
just determination‖ in every proceeding. UTAH R. EVID. 102.8
    ¶47 The dissent adds another reason to prefer the court of
appeals‘ approach. It finds ―no meaningful distinction between an
unequivocal admission in a deposition and an unequivocal
admission in a pleading or response to a request for admission.‖
Infra ¶ 61; see also infra ¶ 62 n.17. We disagree.


SNOPES      (Dec.     28,    2016),    https://www.snopes.com/fact-
check/sinbad-movie-shazaam/. That does not prevent these people
from having very specific memories about the movie and its plot. To
some of them, their memories of the non-existent movie are so vivid
that they can only be explained by a theory that those who
remember the movie travelled from a parallel dimension where
Sinbad actually starred in Shazaam. See Vikram Murthi, Sinbad’s
‘Shazaam’: Inside the Internet’s Conspiracy Theory About a Non-Existent
Movie, INDIEWIRE (Dec. 23, 2016), https://www.indiewire.com
/2016/12/sinbad-shazaam-internet-conspiracy-theory-film-reddit-
mandela-effect-1201762425/.
   8  Maria argues that a party‘s disserving testimony can qualify as
a judicial admission when it is a deliberate, clear, unequivocal
statement about a concrete fact within the party‘s knowledge. Maria
briefly cites to other jurisdictions that have adopted such a rule. See,
e.g., Caponi v. Larry’s 66, 601 N.E.2d 1347 (Ill. App. Ct. 1992). But
Maria does not appear to argue any policy reasons different from
those the court of appeals articulated for why we should adopt a
similar rule.



                                    14
                          Cite as: 2020 UT 63
                         Opinion of the Court

    ¶48 Our Rules of Civil Procedure provide parties with a number
of discovery tools that serve different purposes and trigger different
consequences. Requests for admission are specifically designed to
narrow the issues for trial. We provide parties with twenty-eight
days to respond, at times with the benefit of counsel‘s input. UTAH R.
CIV. P. 36.(a). Parties are alerted that ―[a]ny matter admitted under
this rule is conclusively established.‖ See UTAH R. CIV. P. 36(c).9 The
rules governing depositions do not contain a similar warning. See
UTAH R. CIV. P. 30.
   ¶49 We agree with the California Court of Appeals that
       [t]here is a vast difference between written discovery
       admissions, which are a studied response, made under
       sanctions against easy denials, that occur under the
       direction and supervision of counsel, who has full
       professional realization of their significance. . . and
       glib, easily misunderstood answers given by a lay
       opponent in a deposition.
Scalf v. D.B. Log Homes, Inc., 27 Cal.Rptr.3d 826, 833 (Cal. Ct. App.
2005) (citation omitted) (internal quotation marks omitted) (holding
that the plaintiff‘s deposition testimony was not the equivalent of a
judicial admission).
    ¶50 Moreover, the distinction the dissent wants to draw may
depend on the way the request for admission is phrased. To return
to our now-favorite hypothetical, if the plaintiff in that case received
a request for admission asking her to admit that the light was green,
she may honestly deny the request and support that denial with the
traffic camera video and the nuns‘ testimonies. And that denial
results in no conclusively established fact.
_____________________________________________________________
   9  We draw a similar line with respect to responses in pleadings;
that is, they are ―normally conclusive‖ on the party making them. See
Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984). Utah Rule of
Civil Procedure 8(d) advises parties that statements ―in a pleading to
which a responsive pleading is required, other than statements of the
amount of damage, are admitted if not denied in the responsive
pleading.‖ It stands to reason that the consequences of an admission
in a written pleading would differ from those made in a deposition.
Litigants have weeks to prepare their written responses, free from
the pressures a deposition imposes on a witness, and often with
counsel drafting them.



                                    15
                            LUNA v. LUNA
                         Opinion of the Court

    ¶51 If, however, the plaintiff is requested to admit that she
perceived the light to be green, the honest answer would require an
admission. But the conclusively established fact would be that she
perceived the light to be green, not that the light was, in fact, green.
This might prevent her from changing her testimony to say that she
perceived the light was red, but it would not preclude her from
introducing the other evidence about the light‘s color in opposition
to a motion for summary judgment.
    ¶52 The dissent says that the answer to this problem is to permit
the deponent to change her deposition testimony to say that she is
aware of other evidence of the light‘s color. That remedy elevates
form over substance. The facts of this case demonstrate how.
Counsel asked Luis, ―Did you see the color of the light as you were
entering the intersection?‖ Luis responded, ―Yes. It was green.‖ The
dissent would instruct Luis to, within the twenty-eight days that rule
30(e) permits, amend his answer to, ―Yes, but Antonio says it was
red. So I guess it might have been red.‖10 And the dissent would
allow Luis to use that amended deposition testimony in opposition
to a motion for summary judgment. But the dissent would not
permit Luis to attempt to defeat summary judgment by advancing
Antonio‘s testimony directly. There is no practical reason to draw
that distinction.
    ¶53 A better rule is one that recognizes the realities of litigation
practice. In the words of the Southern District of New York, ―[a]s a
practical matter, a party-deponent cannot reasonably be held to the
same precision of expression, breadth of knowledge, or legal
expertise as a party responding through counsel to a written
interrogatory.‖ Guadagno v. Wallack Ader Levithan Assocs., 950 F.
Supp. 1258, 1261 (S.D.N.Y. 1997). Depositions can become
emotionally charged and high-pressure affairs. Deponents are often
asked, under intense and adversarial questioning, to recall the
smallest details from events that occurred years before. As
commentators have recognized, the parties most likely to bear the
brunt of a rule of conclusiveness are not those that are trying to play
games with the system, but those ―who can be pushed into an
admission by the ingenuity or persistence of adverse counsel‖ and

_____________________________________________________________
   10This assumes, of course, that Luis learns of Antonio‘s testimony
before the twenty-eight days to amend his deposition responses
expire. See UTAH R. CIV. P. 30(e).



                                    16
                          Cite as: 2020 UT 63
                         Opinion of the Court

―the unusually candid or conscientious party willing to speak the
truth regardless of its consequences.‖ MCCORMICK ON EVIDENCE
§ 258 (footnotes omitted).11 We understand those realities and prefer
to treat deposition testimony as giving rise to an evidentiary, rather
than a judicial, admission.
                           CONCLUSION
   ¶54 A party‘s deposition testimony is like any other evidentiary
admission and can be contradicted with other credible evidence. We
reverse the court of appeals‘ adoption of the judicial admission
doctrine as applied to a party‘s deposition testimony, reverse the
grant of summary judgment, and remand to the district court.

_____________________________________________________________
   11  The dissent opines that these concerns are not implicated in
this case because Luis did not ―make a random slip in response to
the sharp ingenuity of a crafty lawyer.‖ Infra ¶ 65. Of course, the rule
the dissent prefers would apply not just to this set of facts, but to all
instances in which a party claims that an opponent‘s deposition
testimony was sufficiently definitive to give rise to a judicial
admission.
    The dissent also suggests this case highlights the need to allow
deposition testimony to create judicial admissions because Luis
testified about the light‘s color a number of times during his
deposition and never wavered in his recollection that the light was
green. But the frequency of Luis‘s responses simply underscores the
importance of a rule that does not require a deponent to conduct an
after-the-fact rewrite of his deposition to insert ambiguity into every
answer in order to attempt to use other competent evidence to defeat
summary judgment. To blend the facts of this case with our
hypothetical, if Luis were to discover traffic camera video that
showed that his recollection was incorrect, the dissent‘s rule would
require Luis to comb back through his deposition testimony to
amend each of the answers in which he mentioned the light‘s color.
This type of requirement would ultimately lead to more game
playing in depositions, more mischief with deposition transcripts,
and increased litigation over whether the testimony was sufficiently
definitive to qualify as an admission. A better rule is one that allows
the party to introduce evidence that contradicts her deposition
testimony, and, if that evidence is strong enough to create a genuine
issue of material fact, to be cross-examined with her deposition
testimony at trial.



                                     17
                              LUNA v. LUNA
                          LEE, A.C.J. dissenting



   ASSOCIATE CHIEF JUSTICE LEE, dissenting:
    ¶55 Today we are asked to decide whether a party is bound at
trial by an unequivocal admission of fact made before trial. To a
large extent our law has already answered this question. Where the
pretrial admission is made in a pleading or in written discovery,
Utah law clearly prevents a party from contradicting the admission
at trial. This is a central tenet of our rules of procedure, which
establish a pretrial process for identifying disputed questions of fact
that proceed to trial. If a party makes an admission of fact in a
pleading12 or response to a request for admission,13 the admission is
binding. It is a ―judicial admission‖ that the party is barred from
contradicting at trial—whether through the party‘s own testimony or
other evidence.
    ¶56 This is settled doctrine deeply embedded in our law of civil
procedure. It follows from the central function of a court—to resolve
disputes between parties. See In re Gestational Agreement, 2019 UT 40,
¶ 12, 449 P.3d 69 (explaining that a court‘s power has ―traditionally
been limited to the adjudication of disputes‖); Univ. of Utah v. Indus.
Comm’n of Utah, 229 P. 1103, 1104 (Utah 1924) (noting that courts
―have no power to decide abstract questions‖ or to render judgments
―in the absence of an actual controversy‖). If there is no dispute of
fact after the pretrial winnowing process runs its course,14 our law
forecloses the need for further proceedings.
_____________________________________________________________
    See Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984) (―An
   12

admission of fact in a pleading is a judicial admission and is
normally conclusive on the party making it.‖).
   13 See UTAH R. CIV. P. 36(c) (responses to requests for admission
are ―conclusively established‖); Smith v. Batchelor, 832 P.2d 467, 468
(Utah 1992) (―We will consider admissions as undisputed fact even
when they apparently contradict other evidence in the record.‖). The
majority notes that the effect of an admission will depend on how
the request for admission is framed. See supra ¶¶ 50–51. True
enough. But that also goes for questions posed in depositions. See
infra ¶ 62 n.17. And the parallelism reinforces the problem with the
majority‘s rule.
   14  The majority claims that there is a dispute in this case. It says
―it is not correct to say that . . . the ‗parties do not disagree‘‖ where
―a party seeks to contradict her deposition testimony with other
credible evidence[.]‖ Supra ¶ 41. But this misframes the question.
                                                           (continued . . .)

                                      18
                          Cite as: 2020 UT 63
                         LEE, A.C.J. dissenting

    ¶57 The case before us today entails a small wrinkle on this
settled question—whether to extend our established rule to
unequivocal admissions made in a different form within the pretrial
winnowing process: testimony given in a deposition. I see no reason
to depart from our established law on this minor extension. I would
treat a party‘s unequivocal statement in a deposition the same way
we treat a party‘s other unequivocal statements prior to trial. I would
treat it as a judicial admission—subject to the party‘s right to retract,
qualify, or explain away the statement in a manner rendering it no
longer ―unequivocal.‖
    ¶58 The court of appeals adeptly identified the principal
grounds for this holding: (1) ―allowing cases to proceed to trial when
the two parties do not disagree about the matter to be tried is a poor
use of our limited judicial resources,‖ given that the ―main function
of the judicial system in our society is to act as a forum for the fair
and impartial resolution of bona fide disputes between parties,‖
Luna v. Luna, 2019 UT App 57, ¶ 17, 442 P.3d 1155; and (2)―there is
something unjust about allowing a litigant to convene a trial so that a
jury can determine if the facts are other than what the litigant swears
they are,‖ allowing a party to ―make out a better case for himself
than he himself has testified to where his case involves facts within
his own knowledge,‖ id. ¶ 19 (citation omitted). As the court of
appeals further observed, our system generally allows parties to
―plead in the alternative.‖ Id. ¶ 20. But once a case goes to trial, ―the
need for alternative pleading is eliminated.‖ Id. And our established
pretrial mechanisms determine the scope of the trial—issues on
which the parties agree are off the table.15


Our pretrial rules tell the       parties how they can establish a
disagreement for disposition      at trial. And under those rules the
plaintiff in this case did not    disagree with the defendant on the
dispositive issue for trial. So   under our pretrial rules, there is no
operative disagreement.
   15 The court of appeals also identified a further policy concern—
avoiding an incentive for subornation of perjury. See Luna, 2019 UT
App 57, ¶ 19 (noting the concern that a party could have the
incentive to advance testimony that is ―regarded as false‖ in light of
the party‘s own testimony) (citation omitted)). The majority turns
this point the other way, suggesting that its rule better ―incentivizes
a party to testify to the facts as she remembers,‖ while letting ―any
discrepancies or issues as to a material fact . . . be sorted by the
                                                        (continued . . .)

                                     19
                             LUNA v. LUNA
                         LEE, A.C.J. dissenting

    ¶59 We could, of course, treat oral deposition testimony
differently. We could hold—as some courts have, and the majority
does today—that deposition testimony differs from written
admissions because it may consist of only ―glib, easily
misunderstood answers.‖ Scalf v. D.B. Log Homes, Inc., 27 Cal. Rptr.
3d 826, 833 (Cal. Ct. App. 2005). But that distinction is insufficient. It
ignores both a core element of the standard for judicial admissions
(that the statement be ―unequivocal‖), and the escape valve built into
that standard (allowing the party to qualify or retract an otherwise
unequivocal statement).
    ¶60 The majority‘s standard, moreover, will create perverse
incentives and compound the cost of discovery. Under the majority‘s
holding, a party who locks an opponent into an unequivocal
admission in a deposition will just follow that up with a request for
admission. And the written response to that request will function as
the bar sought by the defendant in this case (and upheld by both the
district court and court of appeals).
   ¶61 I see no good reason to require the expense and delay of this
additional formality. I see no meaningful distinction between an
unequivocal admission in a deposition and an unequivocal
admission in a pleading or response to a request for admission. I
would apply the same standard to both forms of admissions. And I
would avoid the problems the majority warns of by both limiting the
rule to unequivocal statements and by preserving the escape valve
that allows a party to qualify or retract an admission if and when
there is a basis for doing so.16




factfinder.‖ Supra ¶ 46. I see this as a wash. Both approaches can
create dilemmas for a party—and incentives to bend the truth. But
the law on this point is already established. We generally hold
parties to their unequivocal statements made in the pretrial process.
And we count on them to tell the truth, while leaving an escape
valve that allows them to adjust their statements if plausible grounds
for doing so come to light. See infra ¶ 61.
   16See Webster v. Sill, 675 P.2d 1170, 1172–73 (Utah 1983) (allowing
a party to ―provide an explanation of [any] discrepancy‖ between a
party‘s ―clear position in a deposition‖ and subsequent
―contradict[ion] [of that] deposition‖); Gaw v. Dep’t of Transp., 798
P.2d 1130, 1141 (Utah Ct. App. 1990) (explaining that a party may
                                                       (continued . . .)

                                     20
                         Cite as: 2020 UT 63
                        LEE, A.C.J. dissenting

    ¶62 This approach adequately deals with the concerns expressed
by the majority. I doubt there will be many cases where a plaintiff
admits against his interest that a traffic light was green where a
―traffic camera‖ or ―twenty-seven nuns‖ suggest otherwise. Supra
¶ 2. And on the very rare occasion where such developments ensue,
surely the plaintiff will be in a position to qualify his previously
unequivocal statement—to note that he believed the light was green
when he gave his deposition, but realizes now that he must have
been mistaken.17




qualify or retract her deposition testimony if she has a ―plausible‖
reason for doing so).
   17  As the majority notes, the precise ―phras[ing]‖ of a question
may dictate how unequivocal the plaintiff‘s admission will be. Supra
¶ 50. If a deponent is asked whether ―the light was green,‖ he might
honestly give a denial in light of traffic camera video or the
testimony of twenty-seven nuns. Or the deponent could change his
answer if such evidence emerges later. The deponent might
alternatively be asked whether he ―perceived the light to be green.‖
And if he says yes, that could leave the door open to contrary
evidence.
    I agree with the majority that the same is true of a request for
admission. Supra ¶ 50. The plaintiff who saw a green light but knows
about a traffic camera or twenty-seven nuns might ―honestly deny‖
a request that he admit ―that the light was green,‖ supra ¶ 50, but be
required to admit that he ―perceived the light to be green,‖ supra
¶ 51. And neither of those answers would preclude the plaintiff from
presenting the traffic camera evidence or calling the nuns to testify.
    There is thus no meaningful distinction between an admission
made in response to a written request for admission and one made
in deposition testimony. And we should hold that an unequivocal
answer to either form of request for admission is binding. By doing
the opposite, the majority is the one that ―elevates form over
substance.‖ Supra ¶ 52. Here the plaintiff was asked whether the light
was green and he unequivocally admitted that it was—never
changing or qualifying his testimony as was his prerogative to do.
He should be bound by that admission just as he would be if he had
been asked the same kind of question and given the same
unequivocal answer in response to a request for admission.



                                   21
                            LUNA v. LUNA
                        LEE, A.C.J. dissenting

    ¶63 In the unlikely event that the plaintiff sticks by his story in
the face of the traffic camera or twenty-seven nuns, I suppose my
reaction is either bewilderment or mad respect. Such a plaintiff
surely is entitled to qualify or retract his prior admission. But if he
stands by his unequivocal admission, he is in no position to insist on
a trial under our established system of pretrial procedure.
    ¶64 A deponent‘s admission is not rendered equivocal by a mere
acknowledgement of contrary testimony from another witness. The
deponent must actually equivocate—state that contrary evidence
undermines his confidence in his memory of the color of the traffic
light. And that never happened here. Luis repeatedly and
consistently insisted on the accuracy of his assertion that the light
was green. He never backed away from that insistence.
    ¶65 This observation deals with the majority‘s concerns about
―the realities of litigation practice‖—the possibility that a deponent
may be ―‗pushed into an admission by the ingenuity or persistence
of adverse counsel.‘‖ Supra ¶ 53 (quoting 2 ROBERT P. MOSTELLER ET
AL., MCCORMICK ON EVIDENCE § 258 (8th ed. 2020)). Luis Luna did
not make a random slip in response to the sharp ingenuity of a crafty
lawyer. He was asked simple, straightforward questions about the
color of the traffic light. And he gave the same clear answer seven
times over ((1) when asked ―Did you see the color of the traffic light
as you were entering the intersection?‖ answering ―We were
heading that way. We had the right-of-way‖; (2) when asked ―Did
you see the color of the light as you were entering the intersection?‖
answering ―Yes. It was green‖; (3) when asked ―You don‘t know
how far back you were from the intersection when you first noticed
the color of the light?‖ answering ―I will repeat myself. It was green
when we went through it‖; (4) when asked ―So what I want to know
is exactly where was your car in relation to the intersection when
you first noticed the color of the light?‖ answering ―Well, we saw
it—we were driving, we saw that it was green, and when we passed
through the intersection it was already green‖; (5) when asked ―Was
the light always green from the moment that you first saw it until the
moment of the impact?‖ answering ―Yes‖; (6) when asked ―Did the
seat belt tighten on impact?‖ answering ―Somewhat . . . . I will repeat
again. When we went through, the light was green‖; (7) when asked
―based on your previous testimony . . . you were absolutely adamant
that the light was green as you proceeded through the intersection; is
that correct?‖ answering ―Yes‖).
   ¶66 It wouldn‘t take much ―comb[ing]‖ of the deposition
transcript, supra ¶ 53 n.11, to find these statements. A simple search

                                    22
                           Cite as: 2020 UT 63
                         LEE, A.C.J. dissenting

for ―color‖ and ―green‖ would identify each of Luis‘s seven
statements. Once those statements are identified, a retraction or
correction would be a simple move.
    ¶67 There is no ―mischief‖ or ―game playing,‖ supra ¶ 53, n.11,
in a rule requiring this kind of correction as a prerequisite to going to
trial on the question of the color of the traffic light. The real mischief,
in my view, is in allowing a party to insist on a trial to allow a jury to
decide whether ―the facts are other than what the litigant swears
they are.‖ Luna, 2019 UT App 57, ¶ 19.
    ¶68 The majority‘s concerns are thus not implicated by the rule I
am advocating. Under my approach, if and when a deponent‘s
answer is an imprecision given in response to ―high pressure‖ tactics
of counsel, the law would allow the deponent to retract or qualify his
admission if those tactics gave rise to a plausible reason for doing so.
See supra ¶ 61. But unless and until the deponent does so, he should
be held to his unequivocal admission—whether it is given in a
deposition, a pleading, or a response to a request for admission.
    ¶69 Our system is not an abstract ―truth-finding‖ machine. It is a
system for resolving disputes. See Univ. of Utah, 229 P. at 1104
(explaining that courts ―have no power to decide abstract questions‖
or to render judgments ―in the absence of an actual controversy‖).
And the first step in resolving a dispute is to determine whether one
exists, and if so, to define its scope. This is in large part the function
of our pretrial process. The established rules of that process dictate
which points are in dispute between the parties and which ones are
not.18 Our courts are, in other words, committed to truth-finding
only once a dispute has been established and defined for trial. Accord
supra ¶ 3 (referring to the ―truth-finding function of the trial
process‖) (emphasis added).


_____________________________________________________________
   18 See, e.g., State ex rel Rd. Comm'n v. Petty, 412 P.2d 914, 917 (Utah
1966) (explaining that a primary purpose of the rules of procedure is
to ―eliminat[e] noncontroversial matters, and . . . identify[], narrow[]
and clarify[] the issues on which contest may prove to be
necessary‖); Transamerica Title Ins. Co. v. United Res., Inc., 471 P.2d
165, 167 (Utah 1970) (describing pretrial procedure as ―a method for
searching out and facilitating the resolution of issues which are not
in dispute, and of settling the rights of the parties without the time,
trouble and expense of a trial‖).



                                      23
                               LUNA v. LUNA
                           LEE, A.C.J. dissenting

      ¶70 Our trials accordingly proceed on the basis of party
admissions and pleadings—whether or not they jibe with a judge‘s
sense of ―what actually occurred.‖ See supra ¶ 43 (complaining of the
―injustice‖ of denying a party the right to contradict himself at trial
and ―let the trier of fact determine what actually occurred‖). And
this is a core feature—not a bug—of our procedural system. See Utah
Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439
P.3d 593 (noting that a ―core component of our adversary system
. . . . leave[s] it to the parties‖ to identify claims to be litigated at trial,
and holding that ―we have never thought it our business to
second-guess those judgments‖).
   ¶71 This feature is aimed at least in part at conserving judicial
resources—reserving them for points of dispute between parties. See
Luna, 2019 UT App 57, ¶¶ 17–18. I see no reason to doubt that it will
have that effect across the broad run of cases.
     ¶72 Perhaps there will be occasional disputes ―over whether‖ a
given ―deposition statement actually qualifies as a judicial
admission.‖ Supra ¶ 42. But those disputes are already inherent in
our pretrial system. The majority‘s rule, moreover, will just kick the
can down the road on any such disputes—requiring the additional
time, expense, and unnecessary formality of a rule 36 request for
admission to confirm any admissions made in depositions. And
ultimately, there can be no doubt about what really compounds
litigation costs. Trial is by far the most costly and time-consuming
element of the civil litigation process. See Kerr v. City of Salt Lake, 2013
UT 75, ¶ 57, 322 P.3d 669, (explaining that ―economically and
practically‖ trials are ―enormously significant,‖ ―terribly costly[,]
and time-consuming‖). It makes no sense to require costly,
time-consuming trials on points that the parties agree on just because
the process of sussing out those points could entail some form of
less-costly ―motion practice.‖ Supra ¶ 42.
   ¶73 I also doubt that such ―motion practice‖ will be very
common, extensive, or costly. The main point of concern for the
majority goes to the inquiry called for by the court of appeals into
―whether ‗giving binding effect to the statement would be consonant
with the policies underlying the ―judicial admission‖ rule.‘‖ Supra
¶ 42 (quoting Luna, 2019 UT App 57, ¶ 28.). But this element is
nowhere established in our settled standards for pretrial admissions.
And I would reject it on that basis—and because it adds unnecessary
subjectivity and uncertainty.




                                        24
                          Cite as: 2020 UT 63
                        LEE, A.C.J. dissenting

    ¶74 The court of appeals added this element in anticipation of
the possibility that in certain circumstances ―holding a party to his
testimony‖ could be ―unjust or at odds with the policies underlying
the rule‖ on judicial admissions. Luna, 2019 UT App 57, ¶ 27. These
are worthwhile concerns. But to my knowledge no other court has
endorsed the need for an open-ended, subjective fourth element like
the one established below. And I see no need for such an element to
account for the court of appeals‘ concerns. Our law on pretrial
admissions already does so, in requiring that an admission be
unequivocal, and in allowing the party to qualify or retract it in
appropriate circumstances.
    ¶75 I would apply that standard here. And I would otherwise
affirm the court of appeals across the board—in holding that Luis
Luna was properly barred from introducing testimony to contradict
his unequivocal admission that the light was green, and in affirming
the district court‘s determination that Maria Luna was entitled to
judgment as a matter of law.
    ¶76 Luis‘s deposition testimony is as unequivocal as it could
possibly be. He testified clearly and repeatedly that Maria had a
green traffic light as she entered the intersection. Surely Luis knew
that this was an admission against interest. Yet he repeated it seven
times in the course of his deposition, despite numerous chances to
qualify or limit the admission. I credit Luis for his candor. Had there
been nuns or a traffic camera, perhaps that would have given him
reason to question his view. But neither nuns nor traffic camera
evidence emerged, and Luis never wavered or questioned his view.
And that should be controlling here, just as it would be if Maria were
required to take the further step of asking Luis to confirm his
deposition statement in a written response to a request for
admission. Perhaps that is exactly what will happen on remand. If
so, it will highlight one of several problems with the majority‘s
standard.
    ¶77 Absent the opportunity to contradict himself at trial, Luis
had absolutely no evidence to support his negligence claim. And for
that reason, the district court was right to grant Maria‘s motion for
summary judgment. The district court‘s decision follows clearly
from our decision in Salo v. Tyler, 2018 UT 7, 417 P.3d 581. Salo
clarified that ―our Utah summary judgment standard is in line with
the federal standard set forth in Celotex [Corp. v Catrett, 477 U.S. 317
(1986)].” 2018 UT 7, ¶ 28. Under that standard, the moving party has
the burden of establishing ―an absence of a genuine issue of material
fact and an entitlement to judgment as a matter of law.‖ Id. ¶ 29.

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                            LUNA v. LUNA
                        LEE, A.C.J. dissenting

―[T]hat showing can be made without affirmative evidence on the
moving party‘s side if the question presented is one on which the
nonmoving party bears the burden of persuasion at trial.‖ Id. If a
defendant ―can show‖ that the plaintiff ―has no evidence of essential
elements of his claim[]‖ then the defendant is ―entitled to judgment
as a matter of law.‖ Id. ¶ 33. This is the case here. Maria established
that Luis had no evidence of an essential element of his claim for
negligence—proof of breach of a standard of reasonable care—once
his judicial admission was credited. And that was sufficient, as the
court of appeals concluded. See Luna, 2019 UT App 57, ¶¶ 40–42
(noting that Maria had established that ―no . . . fact witness could
offer any evidence that [Maria] was driving negligently,‖ and thus
concluding that Luis was entitled to judgment as a matter of law).
    ¶78 I would affirm on these grounds. And I would reinforce our
established rule that unequivocal pretrial admissions are binding on
a party at trial unless the party qualifies or retracts them.




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