Update: This post was cited several times in a law review article that appeared in the Fordham Law Review, which includes other useful information about hurdles in filing a legal malpractice case. The article may be found line here.
One of the reasons why legal malpractice cases are generally complex is because a client suing a lawyer needs to hire at least two lawyers, the one to bring the suit, and another lawyer from another firm to be the expert.
The expert will almost always be deposed during discovery, and if the case moves forward to trial, testify at trial. However, it is important to remember that simply showing up with an expert by itself is not enough.
In a recent case in Connecticut (Song v. Collins), a Connecticut appellate court upheld a jury’s decision which found that the plaintiff’s expert’s testimony at trial did not prove that the defendant-attorney failed to meet the “standard of care”. The court wrote:
“the jury was free to disbelieve, in whole or in part, the testimony of either or both of the expert witnesses who testified at trial. Moreover, the jury may well have been unsatisfied with either the clarity or the completeness of the evidence regarding the standard of care applicable to the allegations of legal malpractice in the third count. It was the plaintiff’s burden not just to elicit some evidence regarding the standard of care but to sustain its burden of proving by a preponderance of the evidence the standard of care applicable to the defendant.”
In other words, one of the uncertainties for both sides in legal malpractice cases is how their experts will perform. The jury is free to agree or disagree, believe or disbelieve, in whole or in part. In this particular case, the plaintiff’s expert was asked if the defendant fell below the standard of care, answered yes, and gave an explanation as to what she thought the attorney should have done. However the appellate court did not believe plaintiff’s expert had testified specifically enough about the standard actually. The court also criticized the expert for not testifying as to “what an average prudent attorney would have done under the circumstances.”
The lesson here is that you not only need an expert to testify, you need to make sure the expert addresses the issues in a comprehensive way. Just one more example of the many complexities of litigation in general and legal malpractice in particular.
Author: Howard Altschuler
The law review article that cited this post: Susan Saab Fortney, A Tort in Search of a Remedy,: Prying Open the Courthouse Doors for Legal Malpractice Victims, 85 Fordham L. Rev. 2033 (N.5), 2038 (n.35), 2040 (n.45) (2017).
(Click here for a brief summary of my other blog posts on various legal malpractice related issues)
(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)
Copyright (c) 2014 by Howard Altschuler, All Rights Reserved