This article was originally published by the FDLA in its April 2026 issue and is posted here with permission.

Admitting fault is not the norm for defense counsel but, in some situations, can be the best course of action. In this article, Michael Forte explains some of the practical considerations involved in deciding whether to admit liability.

Successful plaintiff lawyers are able to pick their cases and decline cases with bad facts. Successful defense attorneys take all kinds of cases, and work with what they have. Sometimes, what they have to work with is not much. We all know, for example, that in rear-end motor vehicle accidents, there is a presumption of negligence against the rear-most driver.[1] It is possible to rebut the presumption with sufficient evidence.[2] But even where the presumption can be rebutted, section 316.0895(1), Florida Statutes, provides a separate basis for liability, requiring drivers to maintain a sufficient following distance.[3]

No one likes to admit liability. But it is much better to concede fault where you need to, than to make an unwinnable argument to the jury.[4] Florida Standard Jury Instruction 201.2 states “The jury’s job is to decide what the facts are and what the facts mean.” Do not make the jury’s job more difficult than it already is. If the client is fully at fault, admit it, so that the jury can focus on the real issues and you do not lose credibility. The goal is to get the best possible result for the client. When the facts warrant it, admitting fault can help achieve that goal. Even full defense verdicts are not unheard of in admitted liability cases, due to the plaintiff failing to prove that the accident caused the injuries alleged.

The timing of the admission will depend on the posture of your case. It is almost always preferable to wait at least until after the deposition of the parties. You want to confirm the plaintiff’s deposition testimony does not provide some unexpected angle for a comparative fault argument. And for the sake of completeness, it will be helpful to see what your client actually says at deposition. Many times, it is during the deposition of your client that an admission of fault will occur. The client must be prepared for questions like “did you cause the accident” and “did my client do anything to cause it.” Help your client think deeply about these types of questions in advance. Interview any eyewitness, inspect the accident scene, look for CCTV footage, look for dash cam footage, look for body cam footage, look for news reports, look for social media posts, consult with your accident reconstructionist and do anything else you can think of to help analyze this issue. In the end, if there is no exonerating evidence, if your client thinks he is at fault and if you think he is at fault, he probably is at fault. Remind your client ‘we are not afraid of any facts, but rather we embrace the facts.’ The client does not need to win the case for you at the deposition, but instead you as the lawyer will get a good result for the client later on.

In some cases, the plaintiff’s lawyer will not ask your client clear deposition questions regarding liability or might not even depose your client at all. In those situations, you may find yourself 60 days out from trial, needing to prepare a pre-trial conference order, jury instructions and a verdict form. This may become the time to concede liability, as opposed to waiting too close to the trial date; a later concession would result in last-minute revisions, losing time and creating frustration.

Also by this point, if not earlier, consider a motion in limine on this issue. Once liability has been admitted, there usually is no need to admit evidence of fault at trial. In TT of Indian River, Inc. v. Fortson,[5] after the defendant admitted full responsibility for the motor vehicle accident, the plaintiff asked the defendant a series of liability questions, including questions about when the defendant admitted fault and the scope of defendant’s accident investigation. After a verdict for the plaintiff, the Fifth District reversed and remanded for a new trial due to the improper line of questioning. The court observed, “When a defendant admits the entire responsibility for an accident and only the amount of damages is at issue, evidence regarding liability is irrelevant and prejudicial.”[6]

The most important aspect of admitting fault is getting authorization beforehand. Start with the supervising partner on the case. Next, if there is an insurer who retained you, explain the situation to the insurer, and get its approval to propose the idea to your client. Then sit down with your client for a thorough discussion. If you are representing a vicariously liable client in addition (employer or vehicle owner), have the same discussion with that client, because the admission would affect them as well. Lastly, before any admission is made, confirm what you are about to do in writing to the insurer and the clients, so that everyone is on the same page. Almost all trials present unexpected developments, and you do not want an admission of fault to be one of them.[7]

Admitting liability is not a typical defense strategy, but in the right situation a limited admission may streamline the case and increase the possibility of a favorable outcome for your client.

Michael Forte is a partner at RumbergerKirk in Tampa. He practices in the areas of trucking and casualty defense. He is a chair of FDLA’s Transportation/Automotive Committee and a member of the Trial Advocate Editorial Board.

[1] E.g., Birge v. Charron, 107 So. 3d 350, 353 (Fla. 2012).

[2] “Courts in this state have generally recognized four situations to rebut the presumption: (1) a mechanical failure in the rear driver’s vehicle, (2) the lead driver’s sudden stop, (3) the lead driver’s sudden lane change, and (4) the lead driver’s illegal or improper stop.” Fonger v. Nall, 286 So. 3d 332, 333 (Fla. 5th DCA 2019) (internal quotation omitted).

[3] Florida Standard Jury Instruction 401.9 states violation of a statute is evidence of negligence, though not conclusive evidence. If the jury finds that the defendant violated the statute, it “may consider that fact, together with other facts and circumstances, in deciding whether such person was negligent.”

[4] “You’ve got to know when to hold ‘em. Know when to fold ‘em.” Kenny Rogers, “The Gambler,” The Gambler, United Artists Records, 1978.

[5] 232 So. 3d 19 (Fla. 5th DCA 2017).

[6] Id. at 20; see also Mace v. Liberty Mut. Ins. Co., No. 17-CV-81171-DMM, 2018 WL 8221818, at *2 (S.D. Fla. June 5, 2018) (“Since liability is not contested, I fail to see how any evidence regarding liability could be relevant at this time. Accordingly, I will grant Plaintiff’s Motion to the extent that both Parties may not introduce evidence bearing on liability at trial.”).

[7] “No alarms and no surprises, please.” Radiohead, “No Surprises,” OK Computer, Capitol Records, 1997.