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Appellate Court Holds that Expert Not Needed Where Legal Malpractice Was Obvious

This case is potentially important. It addresses a long-running issue – when a plaintiff must hire a legal malpractice expert. The Plaintiff must do so when expert testimony is needed to explain the standard of care to the jury. Here, the lawyer was hired to file a Medicaid application on behalf of an estate of a disabled person. The lawyer allegedly failed to file the application and the Estate was damaged. The trial court granted summary judgment on the basis that an expert was needed. The Appellate Court reversed because the only issue was an issue of fact: did the lawyer meet her obligations to file for Medicaid? The explanation of why the expert testimony was not necessary is particularly instructive and I quote it here:

There was an attorney-client relationship and a professional duty arising out of that relationship. The third element regarding the breach of duty is in dispute. The appellant did not provide expert testimony to substantiate her claim of legal malpractice regarding the third element. Flynn argues that Pollock’s errors were so obvious that expert testimony was not necessary to demonstrate that Pollock breached her duty. See, e.g., Friedland v. Djukic, 191 Ohio App.3d 278, 2010-Ohio-5777, 945 N.E.2d 1095, ¶ 27 (8th Dist.) (“Expert testimony is ordinarily required to establish the breach of duty in a legal malpractice case, unless the breach is within the ordinary knowledge of lay people”). We agree. Expert testimony as to the standard of care was not necessary because it is within the ordinary knowledge of lay people to determine whether there was a lack of communication between the parties and the lack of filing necessary paperwork could be a breach of duty. See, e.g., Phillips v. Courtney, 8th Dist. Cuyahoga No. 84232, 2004-Ohio-6015 (expert testimony as to the standard of care was not necessary because it was within the common knowledge of the jurors whether the attorney ensured that the application was filed within two years of the client’s termination of employment).

{¶14} Like in Phillips, it does not require expert testimony to determine whether Pollock’s potential lack of communication or failure to file the Medicaid application could constitute a breach of duty. Either Pollock has evidence that she performed the duties she promised the Lankford family, or she does not. It’s a question of fact not law. The Lankford family claims that Pollock did not fulfill her duties as outlined in their agreement. At this juncture of the case, the issue does not lie within the complexities of Medicaid law or estate planning. The issue deals with a question of whether Pollock took any action as it relates to what was agreed upon in the engagement letter. An ordinary layperson can make a simple determination as to whether Pollock did any work for the Lankfords.

{¶15} An ordinary layperson is someone who is not an expert. An ordinary layperson has or should have the ability to judge if Pollock fulfilled her agreement with the Lankfords. For example, if a person hires a painter to paint their home, and then claims that the house was not painted, an expert is not needed to see if the house has been painted. However, if the claim is that the house was painted, but not to industry standards, then an expert would be needed to testify because an ordinary layperson is not equipped to understand industry standards of house painting. Likewise, it is possible for someone to look at the evidence presented and determined if Pollock filled out and filed an application for Medicaid. It is also possible that an ordinary layperson can determine if the written agreement between the parties contained provisions where Pollock agreed to file a transfer-on-death deed. Therefore, the trial court erred in granting summary judgment to the appellees, and the sole assignment of error is sustained.

Because the question of fact was simple – did the lawyer do what she promised to do? – there was no need for an expert. The court’s analogy was correct – this is like a contract with a house painter. Anyone can tell whether or not the house got painted.

Source: Flynn v. Pollock, 2017 Ohio 966 – Ohio: Court of Appeals, 8th Appellate Dist. 2017 – Google Scholar

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