Articles Posted in Expert Testimony Requirement

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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.

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