One of the major barriers to success in a legal malpractice case is the requirement to obtain an expert. The expert, usually a lawyer or professor, can offer testimony on how the conduct at issue did not meet the standard of care. Conversely, the defense expert will testify that the lawyer’s conduct met the standard of care. You may believe that your lawyer breached the duty of care but you need an expert to satisfy the court that you can meet your burden of proof. The expert witness must also offer testimony that the breach caused some damage to the client. The expert need not be a damages expert, but he must testify that the breach of duty caused some economic harm to the client.
There are a few rare cases where legal malpractice can be established without an expert, but such cases are highly unusual.
When we review cases we often try to determine in advance if an expert in the area (family law, appellate law, etc.) would be able to offer testimony that the lawyer’s conduct breached the standard of care. If we cannot obtain such testimony, we will not go forward with the case.