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.” 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.