Articles Posted in Expert Testimony Requirement

Rodowicz v. Feldman, Perlstein & Greene, LLC 3:20-cv-00777  D. Conn. 2024 was a legal malpractice suit where the plaintiff claimed that he lost the underlying litigation (a breach of fiduciary duty by a trustee case)  because of his lawyers’ negligence. He had no expert and summary judgment was granted in favor of the lawyers. The explanation:

“In order to demonstrate a “wrongful act or omission,” the plaintiff must establish the “standard of proper professional skill or care,” i.e., the standard by which a lay person—such as a juror—should judge the attorney’s conduct. Grimm v. Fox, 303 Conn. 322, 329-330 (2012). To demonstrate causation, the plaintiff must show what likely would have happened if the attorney had not breached the standard of care. See Bozelko, 323 Conn. at 284.

Establishing the standard of care and causation ordinarily requires an expert witness. The negligence of an attorney and the consequences of that negligence are matters “beyond the field of ordinary knowledge and experience possessed by a juror.” Id. at 284-85. As a result, a claim of legal malpractice usually requires the testimony of an expert witness to prove before a jury. Ibid.; see also Grimm, 303 Conn. at 329-30.

One of the major barriers to success in a legal malpractice case is the requirement to obtain an expert. The expert, usually a lawyer or professor, can offer testimony on how the conduct at issue did not meet the standard of care. Conversely, the defense expert will testify that the lawyer’s conduct met the standard of care. You may believe that your lawyer breached the duty of care but you need an expert to satisfy the court that you can meet your burden of proof.  The expert witness must also offer testimony that the breach caused some damage to the client. The expert need not be a damages expert, but he must testify that the breach of duty caused some economic harm to the client.

There are a few rare cases where legal malpractice can be established without an expert, but such cases are highly unusual.

When we review cases we often try to determine in advance if an expert in the area (family law, appellate law, etc.) would be able to offer testimony that the lawyer’s conduct breached the standard of care. If we cannot obtain such testimony, we will not go forward with the case.

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.

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.