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Poor Case Preparation Dooms Legal Malpractice Case

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:

Attorneys Welch and Zuckerberg qualified as an expert witness under the Rule. (Appellants’ Br. p. 18). The designated evidence confirms Attorneys Welch and Zuckerberg’s wealth of experience as bankruptcy attorneys. Attorney Welch, licensed in Illinois, elaborated on his legal education at the John Marshall Law School in Chicago, his legal accomplishments, and his practice with a primary concentration on bankruptcy matters. Likewise, Attorney Zuckerberg testified to his educational background, his consumer bankruptcy practice, and his Indiana board certification in consumer bankruptcy. As such, it is undeniable that both Attorneys are imminently qualified by “knowledge, skill, experience, [] [and] education” to be characterized as experts in bankruptcy. See Evid. R. 702(a).

Nonetheless, ignoring the experience element, Attorney Gouveia, in response, emphasizes each Attorney’s statement that they had not been retained as an expert in the case and their respective admissions that “they did not have the requisite information in order to provide expert opinions.” (Appellee’s Br. p. 31).

Turning to the designated evidence before us, Attorney Welch, upon being questioned by counsel for Attorney Gouveia, made the following statements:

[Attorney Gouveia]: Do you understand that there is a legal malpractice case pending in Indiana captioned P. Kevin Barkal, M.D., [], and Pemcor, Inc. v. Gouveia & Associates? Are you generally aware of that?

[Attorney Welch]: Generally aware. I don’t know if I knew about the Pemcor part, but generally aware.


[Attorney Gouveia]: [M]y understanding coming down here is you were going to say Gouveia & Associates somehow breached the standard of care that applies to reasonable lawyers practicing bankruptcy law from Northwest Indiana. Do you have any opinions of that sort?

[Attorney Welch]: Well, first of all, me as an expert is news to me. . . . If I were to render an expert opinion, I would spend a lot more time in doing work to prepare my opinion than I did preparing for this deposition, so. . . . I’m not here giving an expert opinion of anything. I was never asked to, to be honest with you.


[Attorney Gouveia]: Safe to say that you haven’t reviewed the Gouveia & Associates file or [Attorney] Freeland’s file with regard to their respective representations in that earlier bankruptcy proceeding?

[Attorney Welch]: Absolutely not.

(Appellants’ App. Vol. 5, pp. 123-24, 126).

Attorney Zuckerberg testified in a similar vein:

[Attorney Zuckerberg]: I thought when I was going to be showing up today it only revolved around my reviewing the schedules as to [Attorney] Freeland and the eligibility of Dr. Barkal on the 13. That was my sole expectation.


[Attorney Gouveia]: Have you ever been retained as an expert in Barkal versus Gouveia?

[Attorney Zuckerberg]: No.


[Attorney Gouveia]: Has [Appellants’ attorney] at any time asked you to form opinions about the standard of care that would apply to [Attorney Gouveia’s] work in connection with Dr. Barkal?

[Attorney Zuckerberg]: He asked my opinion, but I hadn’t seen all of the documents, nor was I familiar with the information to render an opinion.


[Attorney Gouveia]: Have you been asked to reach an opinion in connection with whether any standard of care was breached by [Attorney Gouveia] in connection with the Barkal bankruptcy?

[Attorney Zuckerberg]: No.


[Attorney Gouveia]: Just to sum up, as you sit here today, do you have any opinion on any issue connected with what [Attorney Gouveia] and his firm did or didn’t do in the course of their representation of the Barkal Freeland case?

[Attorney Zuckerberg]: I know nothing. I’ve reviewed nothing. I’m not qualified to give an opinion, I don’t think.

(Appellants’ App. Vol. 5, pp. 144, 145, 146).

In sum, the Court of Appeals affirmed the decision to grant summary judgment because plaintiff did not disclose an expert. Apparently, plaintiff thought that he could disclose the two witnesses as fact witnesses and that such disclosure would be sufficient. It is not sufficient in Indiana, or in Illinois or in the federal courts. The plaintiff has to identify an expert, disclose his or her opinions and allow them to be deposed as opinion witnesses. Disclosing two lawyers as fact witnesses won’t get the job done in any court. In sum, the plaintiff threw away his case by failing to locate, identify and properly prepare an expert witness.

Edward X. Clinton, Jr.

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