Articles Posted in Expert Testimony Requirement

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It is extremely rare for a plaintiff to succeed in a legal malpractice case without obtaining an expert witness to testify as to the appropriate standard of care. Plaintiffs who attempt to prevail without an expert usually see their case dismissed on a summary judgment motion by the Defendant. However, in Cannon v. Poliquin, No. K19C-03-023-CLS (Delaware Superior Court) the court held that no expert testimony was required. The court then denied the defendant’s motion for summary judgment.

The court noted that there were two causes of action in the complaint: (a) legal malpractice and (b) fraudulent inducement. (The opinion does not describe the factual allegations so we don’t know what actually occurred). However, the court noted that because the case would be tried in a bench trial (no jury) there was no need for an expert witness.  This is an unusual assertion and one that I have not seen before. The explanation:

Plaintiffs contend that an attorney is not required for their legal malpractice claim because it is based on intentional or reckless conduct. Without reaching the issue of whether or not an expert witness must testify in cases alleging intentional or reckless conduct, the Court finds that an expert witness is not required in this specific case. Under Delaware’s Uniform Rules of Evidence, a witness is qualified as an expert witness if that witness’s “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue.”[6] This case is a bench trial; thus, the Court is the trier of fact. It is unnecessary for an expert witness to provide testimony on the appropriate standard of care for an attorney because the Court knows the applicable standard of care. Accordingly, an expert witness’s “specialized knowledge” will not help the trier of fact determine the appropriate standard of care for an attorney. Because an expert witness is not required for Plaintiffs’ claim, Defendant has failed to show that he is entitled to judgment as a matter of law on Plaintiffs’ claim for legal malpractice.

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The case is captioned Patterson v. Kohn, 2017 AP 1524, decided by the Wisconsin Court of Appeals. Patterson sued his former criminal defense lawyer for failing to properly investigate his defense (self-defense to a reckless homicide charge), and interview witnesses. Patterson was unable to obtain an expert witness to support his claims and his case was dismissed. The dismissal was affirmed on appeal. The Court of Appeals rejected Patterson’s argument that the breach did not require an expert witness.

¶10 Patterson relies on the exceptions to the rule requiring expert testimony by arguing that his “legal malpractice claim can be decided as a matter of law based on undisputed and conceded facts, expert testimony is unnecessary in this case” (emphasis omitted). Patterson’s argument centers entirely on what he considers to be Kohn’s negligence. Specifically, Patterson argues that Kohn negligently failed to follow “instructions” by failing to investigate certain facts, circumstances, and witnesses to support Patterson’s self-defense theory, and that the negligence led to his conviction. We do not agree with Patterson that this cause of action involves only a failure to follow instructions. Patterson’s legal malpractice cause of action implicates the applicable standard of care attorneys owe their clients, statutes and case law regarding criminal procedure, and the judgment criminal attorneys exercise on a case-by-case basis. See Pierce v. Colwell, 209 Wis. 2d 355, 362, 563 N.W.2d 166 (Ct. App. 1997) (“[E]xpert testimony will generally be required to satisfy this standard of care as to those matters which fall outside the area of common knowledge and lay comprehension.”). We conclude that under the facts of this case, Patterson was required to present expert testimony to prove his claim that Kohn’s alleged negligence caused his injury or damage. A lay person would not understand the evidence necessary for a successful (from Patterson’s standpoint) McMorris hearing, the discovery and investigation process in a criminal matter, or the level of discretion afforded to criminal defense attorneys.

¶11 Moreover, Patterson ignores a key requirement in legal malpractice actions stemming from an attorney’s representation in a criminal matter— Patterson’s claim requires proof of actual innocence. See Hicks v. Nunnery, 2002 WI App 87, ¶¶32-50, 253 Wis. 2d 721, 643 N.W.2d 809 (legal malpractice claim in criminal context requires proof of actual innocence). Put another way, Patterson has not made any showing that Kohn’s actions or inactions caused him harm. Patterson’s contention is that, if certain persons had testified to certain facts in his criminal case, he would not have been convicted. Patterson names those persons in his complaint. However, Patterson proffers no admissible evidence in the record to support his contention that those persons would have, if called, testified as Patterson contends.

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This case, Alerding Castor Hewitt, LLP v. Paul Fletcher, et al, 16-cv-02453 (S.D. Indiana, Indianapolis Division) (April 18, 2019) illustrates the necessity of obtaining expert testimony to support a claim. Fletcher brought a malpractice claim against his former counsel after counsel sued for legal fees. Fletcher alleged that the attorneys were negligent when they represented him in a civil forgery case. The court disagreed and granted summary judgment for the attorneys.

Fletcher could not show that any alleged error by the attorneys proximately caused his loss because he had no expert testimony to support his claims:

To establish the applicable standard of care, Alerding Castor has presented an expert report from attorney David C. Jensen. Jensen’s thorough report discusses his review of the record from the Forgery Lawsuit in light of the applicable standard of care. Dkt. 130-3. Jensen concludes that Alerding Castor exercised ordinary skill and knowledge in litigating the Forgery Lawsuit and met the standard of care they were obligated to provide in its representation of Defendants. Id. at 16. Jensen’s conclusions are amply supported by the facts in the record.

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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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This case is interesting because it dismisses a legal malpractice claim because the expert did not reveal how the negligence of the attorney caused the injury of the plaintiff. The opinion does not shed as much light on the facts of the case as I would like it to. However, the opinion does explain that although plaintiff had an expert and the expert prepared a report, the expert did not sufficiently explain proximate causation. Proximate causation is a difficult concept for nonlawyers to understand. Indeed, sometimes lawyers do not understand it.

In sum, the expert report said the lawyer was negligent but it failed to explain why the negligence caused the bad result that the plaintiff received. The opinion, though it is based on Minnesota law, is consistent with the modern trend in the cases which requires expert reports to be more complete.

Edward X. Clinton, Jr.

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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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