by Wilton H. Strickland

A few years ago I was taking the deposition of a plaintiff and decided to spend a few minutes asking him about the facts alleged in his complaint. His attorney objected to this line of questioning, arguing that the plaintiff could not be presumed to know allegations that had been drafted by counsel, nor could the plaintiff be bound by them. I did my best to contain my shock, for it is fundamental that parties are bound by factual allegations in their pleadings regardless of who drafted them; indeed, an admission in a pleading is perhaps the most powerful kind and supersedes later, contradictory assertions by the party in question. See, e.g., Stevens v. Novartis Pharms. Corp., 2010 MT 282, ¶ 74, 358 Mont. 474, 247 P.3d 244; Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988); Hart Props., Inc. v. Slack, 159 So. 2d 236 (Fla. 1963); Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F.2d 618, 621 (11th Cir. 1983).

So, please make sure that your clients review the pleadings for factual accuracy before filing, and also make sure that your clients are familiar with the pleadings when preparing to give testimony. Failure to do so could compromise your client’s case and expose you to malpractice liability.