SURPRISE ENDING: A court found that a particular legal malpractice plaintiff did not need an expert but only because the plaintiff spent seven years pursuing a legal malpractice case that did not exist….

I pointed out in an earlier post that legal malpractice plaintiffs almost always need to retain one or more experts to testify on their behalf. A failure to get an expert in a legal malpractice case is almost always a recipe for disaster. In a recent court decision (2014), that principle was turned inside out and upside down in a surprising way.

In Cammarota v. Guerrera, the plaintiff  got through discovery and went all the way to trial for a legal malpractice claim (and did so without any legal malpractice expert). The plaintiff (Cammarota) hired the original attorney (Guerrera) to handle a real estate transaction. As a result of what occurred during the transaction in about 2005, Cammarota sued Guerrera for legal malpractice in 2007.

Litigation often takes a long time but this case seemed to take longer than usual for a case that did not appear overly complex, with the trial in the matter taking place in 2012, about five years after the legal malpractice action was originally filed.

After the plaintiff presented his case to the jury, and before the defendant presented his case, the legal malpractice defendant filed a motion asking the court to direct a verdict in favor of the legal malpractice defendant partly on grounds that the plaintiff did not have a legal malpractice expert testify at trial. Translated, that means the defendant was asking the judge to throw the plaintiff’s case out of court. And that is what the judge did. Victory for defendant!

While the attorney accused of legal malpractice was undoubtedly happy after having the plaintiff’s case thrown out in the middle of the trial, that happiness only lasted about two  years. On an appeal that took two years, in 2014, the appellate court reversed the trial court’s decision and remanded the case back to the trial court for a new trial, where the whole process will start once again.

What is particularly interesting about the appeal is the reason given for reversal. On the surface it would seem as if the plaintiff had won a tremendous victory in being permitted to pursue a legal malpractice claim without an expert, a very rare occurrence. The reality is less stunning…. The court pointed out that even though the plaintiff had labeled the case as legal malpractice, the court was not bound by the characterization a party gives to a claim.

Apparently the issue in dispute at trial did not involve the defendant’s professional judgment but involved instead the attorney’s handling of money in the real estate transaction. The court emphasized the legal reality: “If the case ultimately required resolution of the question of whether the defendant committed professional negligence, then ordinarily expert testimony would be required to prove the applicable standard of care and, perhaps, deviation from the standard of care.” In other words, if you have a legal malpractice case you still almost always need an expert.

What happened? Well, in this particular case the court believed that the real issue in dispute was related to Attorney Guerrera  handing over a check payable to someone else after he had been warned about that person by Cammarota.  As the court noted: “The question of whether handing a check to the wrong person constitutes negligence is within the common experience of the jury and does not require the use of peculiar or specialized knowledge.” Basically the court stated the general principle that if the issue “is within the realm of the jury’s ordinary knowledge” an expert is not needed.

One important lesson from this case is that in the litigation process not everything is necessarily what it seems to me. Here, the plaintiff pursued his case on grounds of legal malpractice, only to find out seven years later on appeal that his case had nothing to do with legal malpractice. Lucky for him: if it had been a legal malpractice claim he would have lost the appeal.

(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.