Lawyers don’t like to admit mistakes. But, of course, even good lawyers make mistakes on occasion.  The key, I have found, is to acknowledge your mistake as soon as possible and attempt to correct it promptly.  (I suppose that’s good advice not just in litigation, but in life generally.)

A few years ago I made a mistake in filing my client’s answer to a complaint in an Americans with Disabilities Act case:  I admitted in the answer that the plaintiff had a disability.  Perhaps the mistake was understandable, as the plaintiff was born with only one hand, and the defendant had admitted in its response to plaintiff’s EEOC charge that she was disabled.  Still, the admission was a mistake, because when I took the plaintiff’s deposition, she insisted that she was not disabled and could do anything any two-handed person could do, except juggle.  Seriously, that was her testimony.  The plaintiff’s can-do attitude was admirable, but her testimony was inconsistent with her ADA complaint.  I immediately moved the amend the defendant’s answer to deny that she was disabled.  Plaintiff’s counsel opposed the motion. After briefing by the parties, the judge denied my motion on the grounds that the amendment would be futile.  The court reasoned that whether the plaintiff was disabled under the ADA was an issue of law for the court to decide; thus, the defendant’s admission of a legal conclusion could have no binding effect.  The court cited the Eleventh Circuit’s decision in Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1514 (11th Cir. 1997), in which the court questioned “whether [defendant’s] admission has effect for conclusions of law that are set out in the complaint”.

(By the way, we ultimately prevailed in the case, because whether the plaintiff was disabled or not, the evidence showed that she had been fired for violating a company policy.)

I was reminded of my mistake this morning when I read of a lawyer’s similar mistake in a case under the Fair Labor Standards Act, Cortina v. F.A.D. Detective & Security Services, Inc., Case No. 11-20732-CIV-KING (S.D. Fla., December 1, 2011).  The defendants’ attorney admitted in the answer that defendants engaged in interstate commerce, which is a prerequisite for establishing that the business is covered by the FLSA.  (This is known as “enterprise coverage.”)  Subsequently, the defendants retained a different attorney. The second attorney filed a motion for summary judgment, arguing that the court lacked subject matter jurisdiction because there was no evidence that defendants had ever engaged in any interstate activities.  But the court rejected this argument on the grounds that defendant had admitted in their answer that they engaged in interstate commerce.  The court stated that while subject matter jurisdiction cannot be waived, defendants’ “assertion that they were not engaged in commerce raises a factual question.”

I find the court’s reasoning to be dubious.  All legal conclusions ultimately turn on the underlying facts.  The proper question, it seems to me, is whether the defendants admitted facts that compelled the legal conclusion that they engaged in interstate commerce, or, alternatively, whether defendant merely admitted the legal conclusion that they engaged in interstate commerce, notwithstanding any actual facts.  In my ADA case a few years ago, although defendant admitted that plaintiff was disabled, the court was open to the possibility that this legal conclusion might not be supported by the facts.  It seems to me that the judge in my case got it right, and the Cortina court got it wrong. 

But perhaps the real problem for defendants in the Cortina case was their unexplained delay of pointing out their mistake to the court.  In a footnote to its decision, the court noted that two months had elapsed between the time the second attorney had entered an appearance, and the date that defendants filed their motion for summary judgment.  Thus, the court noted, “Defense counsel had ample time to move to amend the Answer,” but failed to do so.

To answer the question posed by the title of this blog post –  is a mistaken admission to a conclusion of law binding on the defendant? – I think the answer is maybe.  Like so many other issues in the law, it depends on how the judge frames the issue.  What seems certain is that defense counsel should move to amend the answer as soon as possible after realizing their mistake, and not wait until filing a motion for summary judgment to spring their defense on opposing counsel and the court.