Articles Posted in Expert Testimony Requirement

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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.

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In Barkal v. Gouveia and Associates, the Court of Appeals of Indiana affirmed a grant of summary judgment for an attorney defendant. The decision was issued on December 27, 2016, and will be published.

Barkal alleged that Gouveia breached the standard of care and caused him damages when he failed to file a bankruptcy petition. (Gouveia denied having been retained to file a bankruptcy petition, but that part of his defense did not factor in the decision).  Barkal alleged that because Gouveia did not promptly file the bankruptcy case, and, as a result, he lost a meritorious bankruptcy case. (Again, the allegation is hard to fathom as Barkal hired another attorney who did file the bankruptcy case).

Gouveia moved for summary judgment on the ground that Barkal did not disclose and present expert testimony. Barkal pointed to the deposition testimony of two of his other bankruptcy lawyers, but the court noted that those lawyers were not disclosed as experts and did not offer opinion testimony in their depositions. As a result, Barkal had no expert and no case. The court explains its ruling and cites the relevant deposition transcripts:

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This case, Fox v. Seiden, has already made two trips to the Illinois Appellate Court. It is interesting because it is the rare case in which the court granted summary judgment in favor of the plaintiff.

The underlying case was captioned Multiut Corp. v. Draiman. The current case was brought on behalf of Miriam Draiman, one of the defendants in the Multiut case. In 2001, the court found that Draiman’s husband had engaged in deceptive trade practices and assessed attorney fees against “the defendants.” Plaintiff sought fees of $1,317,026.85. There was a big problem with this finding in that Miriam Draiman was not found liable on the consumer fraud act count. Thus, the judge erred in awarding attorney fees against “the defendants.”

Seiden appeared for Miriam Draiman in the post-trial proceedings. The Appellate Court describes the alleged error as follows:

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This is an old but sad story: a plaintiff in federal court misses the expert disclosure deadline and then the entire case is lost. The district court has the authority to set deadlines for expert disclosure and can enforce those deadlines. After the plaintiffs failed to disclose an expert, the district court entered summary judgment against them. They appealed, but the Seventh Circuit was also unsympathetic.

Source: HASSEBROCK v. BERNHOFT, Court of Appeals, 7th Circuit 2016 – Google Scholar

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This case is typical of divorce malpractice cases. The plaintiff sued his former lawyers on the ground that they did not adequately address a potential problem of his settlement agreement with his wife. The problem, apparently, was that after the divorce the plaintiff was unable to refinance a loan on one of his commercial properties. That led to unspecified damages. Plaintiff then filed a legal malpractice case on a pro se basis. The court granted the defendant’s summary judgment motion on the basis that plaintiff did not retain an expert witness to testify on his behalf.

Cases holding that a plaintiff in a legal malpractice case must have an expert are legion. Despite this, in my experience, many nonlawyers do not understand why retaining an expert is so important. The retained expert testifies concerning the standard of care and offers an opinion as to whether the lawyers met the standard of care or did not meet the standard of care. The law views lawyers in the same way that it views medical doctor. A doctor is required to establish the medical standard of care. In similar fashion, the plaintiff here needed a divorce lawyer to offer an opinion as to the manner and method of practice of divorce lawyers in these situations.

Thus, before filing a legal malpractice case, consider whether or not you have the resources to retain a qualified expert. In a patent case, you need a patent lawyer. In a divorce case, you need a divorce lawyer. Without an expert a plaintiff is just wasting everyone’s time and money on a legal malpractice case that is not going anywhere.

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ALLIED WASTE NORTH AMERICA, INC. v. LEWIS, KING, KRIEG & WALDROP, PC, Dist. Court, MD Tennessee 2015 – Google Scholar.

This is an opinion of the United States District Court for the Middle District of Tennessee denying motions for summary judgment filed by the three law firms that represented Allied Waste in an underlying suit.

The underlying suit was filed after a waste facility owned by the Metropolitan Government of Nashville and Davidson County (“Metro”) burned to the ground. Metro sued Allied and other defendants. The underlying case ended with a $7.2 million verdict against Allied.

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QUAD CITY BANK & TRUST v. ELDERKIN & PIRNIE, PLC, Iowa: Court of Appeals 2015 – Google Scholar.

This is an unusual legal theory in a legal malpractice case. In the underlying case, the plaintiff bank brought a case against an accounting firm on the ground that the accounting firm had failed to detect improper transactions by one of the bank’s lending clients. The lending client had apparently falsified its inventory reports, leading the bank to believe that there was more inventory than in fact existed. The bank’s claim in the legal malpractice case was that had it received accurate information from the auditing firm, the bank would have been able to foreclose on the loan sooner and it would have mitigated its losses. The underlying case went poorly for the bank because the bank’s expert witness was barred from testifying at trial. The court summarized the facts as follows:

“The case against [the accounting firm] proceeded to trial, but [the accounting firm] successfully moved to have the bank’s sole expert witness excluded from testifying because the expert was not qualified to offer an opinion regarding the standard of care applicable to [the accounting firm]. See Quad City Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 93-94 (Iowa 2011) (upholding the district court’s ruling excluding the bank’s expert from testifying because he was not qualified to offer an opinion as to the applicable standard of care). The case proceeded to the jury, which returned a verdict in favor of [the accounting firm], and that verdict was upheld on appeal. Id.

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Adkins v. Palermo, Dist. Court, ED Kentucky 2014 – Google Scholar.

Probably the most common way to lose a legal malpractice case is to fail to identify an expert. The defendant moves for summary judgment and the court grants it. This opinion is worth reporting because it is well-written.

In the underlying case, plaintiff, represented by Mr. Palermo, filed a personal injury case. The trial court held that the defendant was immune under workers compensation doctrines. The lawyer told Adkins that there was no valid basis to appeal and concluded the representation. Adkins sued the lawyer, but he failed to obtain an expert witness and, thus, could not prove a breach of the standard of care.

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Koch v. PECHOTA, Dist. Court, SD New York 2013 – Google Scholar.

This is an immigration malpractice case where the lawyers were hired to represent a woman to help her obtain a green card. They apparently succeeded in that effort. Later, the plaintiff was deported. She sued the lawyers for legal malpractice, arguing that they failed to prevent the deportation.

The defendant lawyers argued that the representation ended when the green card was issued. Therefore, under their logic, they did not commit legal malpractice by failing to prevent the deportation of the plaintiff.