When is a legal malpractice expert not an expert, and why should I care?

One of the reasons legal malpractice cases are usually extremely complicated is that the new attorney you hire to sue your former attorney almost always needs to retain one or more experts to establish that your former attorney fell below the standard of care and, as a result, monetarily damaged you.

Generally this means hiring a very experienced second attorney to be the expert. The lawyer-expert testifies and explains to the jury about the “standard of care.” Though states may vary in how the standard of care is defined, it generally means what a reasonable attorney of average competence would do under similar circumstances and whether the attorney who is being sued failed to live up to that standard. In addition, the lawyer-expert is needed to establish that whatever the defendant-attorney may have done wrong contributed in whole or in part to the damages suffered by the former client. Hiring the right expert is also often critical to achieving an appropriate settlement prior to trial.

Yes, you read that correctly. You hire an attorney to pursue a legal malpractice case. In almost every legal malpractice case, your attorney must hire (or have you hire) at least one other additional attorney. The second attorney is the one who will provide an expert report, be deposed, and testify at trial.

In very rare cases, because the malpractice committed is so egregious, a litigant is allowed, in essence, to get away without an expert.** (see note below).  It is almost never worth the risk to  litigate a legal malpractice case without an expert.  A legal malpractice attorney’s failure to hire a legal malpractice expert is potentially legal malpractice, depending upon the circumstances.

Even though an expert is almost always needed by a plaintiff in a legal malpractice case, it is surprising there are so many cases reported where a plaintiff (or, more usually, the plaintiff’s attorney) decides not to retain an expert.

In a case that made it all away to the Connecticut Supreme Court, a pro se plaintiff made a valiant but ultimately unsuccessful effort to argue that he did not need a legal malpractice expert in his case because the Connecticut Supreme Court itself had previously criticized his attorney as to how that attorney handled aspects of the underlying case for which malpractice was sought.

The legal malpractice case is Grimm v. Fox, 303 Conn. 322 (2012). The earlier case where the Connecticut Supreme Court strongly criticized Mr. Grimm’s law firm was Grimm v. Grimm, 276 Conn. 377 (2005).

In the original Grimm v. Grimm 2005 decision, the Connecticut Supreme Court upheld the appellate court’s decision on grounds “that the record was inadequate for appellate review and the defendant’s claim was abandoned because of inadequate briefing.” The Supreme Court stated Grimm’s lawyers failed “to follow certain basic principles of appellate procedure.” In a footnote in the 2005 decision, the Connecticut Supreme Court stated that Grimm’s lawyers “violently” disregarded the rules regarding the organization of appellate briefs.

(One other thing that the 2005 case illustrates is that it is important for clients to read judicial decisions in their cases because there may be hints, red flags, or outright statements of what the attorney failed to do. In another post, I will discuss some more red flags that may alert a client to the potential that legal malpractice has been committed.)

By the time it reached the Connecticut Supreme Court a second time in 2011, it appears that Mr. Grimm took these criticisms seriously and brought a legal malpractice action against his former attorneys, representing himself pro se.

Mr. Grimm argued he did not need an expert because he had the opinion of the Connecticut Supreme Court itself as evidence that the attorney had failed to meet the standard of care.

Although you can read the decisions yourself by clicking on the links above for each case, in essence the Supreme Court acknowledged that it had made statements that were “critical in tone and content” but they had not nor could they have given any opinion about the reasonableness of what the lawyers did, whether what they did have some strategy behind it, “or whether other attorneys would have performed similarly in a comparable situation.”

The glaring problem is of course that there is really no circumstance an attorney would have any strategic justification to file an inadequate record, or “violently” disregard the rules of appellate procedure.

There was a concurring opinion in the case where one of the Justices disagreed with the majority’s conclusion that an expert was needed to establish that the lawyer had violated the applicable standard of care. The concurring Justice agreed, however, with the ultimate outcome of the case. He noted that expert testimony was needed for Mr. Grimm to establish that the standard of care “was the proximate cause of the damages that the plaintiff allegedly sustained.” The 2005 Connecticut Supreme Court decision did not say anything about proximate cause and therefore could not be used by Mr. Grimm.

What is proximate cause? It is a linchpin of a legal malpractice action and worth a separate post. Briefly, you have to show not only that the attorney made an error but that this particular error contributed to the damage. Therefore, while the concurring Justice believed that the error was obvious and no expert was needed about that,  the damage for the error was not obvious and did need an expert. Either way, Mr. Grimm loses the appeal.

While I think the concurring opinion had the better argument, the bottom line is that the end result was the same because an expert still was needed on the issue of proximate cause. The experts still would have been needed to prove that had these procedural issues been handled correctly that the outcome would have changed and that there were measurable monetary damages.

In this particular case, the mistake was made by a pro se litigant, but there are many cases, most in fact, where the failure to obtain an expert is the failure of an attorney handling the legal malpractice case.

Your legal malpractice case may rise or fall on the testimony of the expert. If you are representing yourself in a legal malpractice action, you are taking an extremely big risk to proceed without an expert or experts to testify at trial. If you do have a legal malpractice action, you should talk with your attorney about the expert or experts, find out why that particular expert was chosen, read any expert disclosures or reports, and attend or read the depositions of any experts.

Author: Howard Altschuler

** [Paul v. Gordon, 754 A.2d 851 (Conn. App. 2000) is an example of a case where, at least in Connecticut, an expert was not needed. In Paul, the client followed the lawyer’s advice to stop paying rent as a result of a dispute with the landlord. When served with an eviction notice, the client gave the notice to Paul, who said that he would handle it. The client repeatedly contacted Paul attorney to find out the status but received no response. Ultimately, they were evicted and lost a $30,000 deposit.  In the legal malpractice action, Paul’s legal malpractice attorney did not name an expert. The trial court granted the defendant-attorney’s motion for summary judgment. The clients appealed and won a rare reversal. As the court noted, although legal malpractice plaintiffs generally need to have an expert in order to explain the standard of care to the jury so that the defendant-attorneys’ actions can be evaluated in comparison to the standard, there is an exception when “there is such an obvious and gross want of care and skill of the neglect is clear even to a layperson.” Interestingly, and not uncommon for published opinions, there is no discussion as to how Mr. Paul was going to prove proximate cause, that is, assuming the attorney had handled the case properly rather than negligently, that the outcome of the eviction would have been different.]

(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) 2013 by Howard Altschuler, All Rights Reserved