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.
Although Plaintiffs failed to identify an expert and produce an expert report by the appropriate date, Defendant is not entirely blameless. The Court’s Trial Scheduling Order required Plaintiffs to submit their expert reports by September 18, 2019. Defendant Poliquin, however, did not even request an expert report from Plaintiffs. Defendant Beauregard and Defendant Brown, Shiels & Beauregard were the only defendants who requested expert reports from Plaintiffs. Defendant Poliquin cannot cling to the fact that Plaintiffs failed to identify an expert and produce an expert report when he did not even ask Plaintiffs to do so. Defendant Poliquin’s actions do not entitle him to summary judgment and should not preclude Plaintiffs from calling an expert witness to testify. Thus, notwithstanding the Court’s decision today, if Plaintiffs decide to call an expert witness for trial, then the parties should try to find an appropriate deadline for identification of experts and production of expert reports. If the parties cannot agree on a reasonable date for these actions, then the parties should seek leave of the Court to modify the existing Trial Scheduling Order.
Finally, Plaintiffs also filed suit against Defendant for Fraudulent Inducement of Contract. Defendant’s motion for summary judgment argued only that Defendant was entitled to judgment as a matter of law because Plaintiffs failed to identify an expert witness for their legal malpractice claim. Defendant made no arguments regarding Plaintiffs’ claim for fraudulent inducement of contract. Accordingly, Defendant has also not shown that he is entitled to judgment as a matter of law on Plaintiffs’ claim for fraudulent inducement of contract.
Comment: this is a rare victory for a plaintiff on the issue of expert testimony.
Should you have a question about a legal malpractice case, do not hesitate to call me at (312) 357-1515, Extension 1.