PA: No Need for Expert Witness where the Lawyer's Malpractice is Obvious
Antonis v. Liberati 821 A.2d 666 (Pa. Cmwlth. 2003)
Student Contributor: Evan Kusnitz
PA Underlying Mortgage Transaction
Facts: Plaintiff hired Attorney to prepare a mortgage and note as a security on a loan to Borrower. Attorney delivered the documents to the Recorder of Deeds. Plaintiff called Attorney several times to ask if the mortgage was recorded correctly, and Attorney repeatedly assured him that it was. However, due to a clerical error, the mortgage was in fact not recorded correctly. As a result, Borrower was able to sell the land subject to the mortgage without disclosing the existence of the mortgage, and without paying anything to Plaintiff. Plaintiff successfully sued Attorney. On appeal, Attorney argued that the trial court erred by not requiring expert testimony to show that he had a duty to Plaintiff to ensure that the mortgage was recorded correctly. Attorney also argued that Borrower’s fraud was an intervening cause of Attorney’s harm.
Issue:
- Is expert testimony required to show that an attorney has a duty to a client to ensure that a mortgage is recorded correctly?
- Is a borrower’s fraud––selling mortgaged land without disclosing the incorrectly recorded mortgage––an intervening cause of any harm caused by an attorney’s failure to ensure the mortgage was correctly recorded?
Ruling: In affirming the decision of the trial court, the appellate court ruled:
1. Expert evidence . . . is not required when the issue of negligence is clear enough to be concluded as a matter of law.
Since it is the responsibility of the mortgagee to ensure that the mortgage has been properly recorded, that duty undoubtedly falls upon his attorney, who represents him in the matter.
2. A borrower’s fraud is not an intervening cause of the harm caused by an attorney who failed to ensure that a mortgage was correctly recorded. If the attorney did not breach his duty to his client, the fraud could have never happened.
Lesson:
1. A mortgagee’s attorney has a duty to ensure that the mortgage is recorded correctly.
2. When an attorney’s negligence is obvious, expert evidence may not be required.
In a case such as this, I agree with the holding and do not think that an expert is required to show that the attorney was negligent here. Further, I believe that a jury also does not need an expert to understand that the attorney's negligence contributed to the fraud.
Expert testimony should not always be required when negligence is evident. In medical malpractice, in cases of Rep Ipsa, Courts have found that when a lay person can recgonize negligence, an expert is not needed. It is costly to require experts for all different cases and it could possible dissuade true plaintiff from initiating a law suit.
By not requiring an expert witness in apparently clear cases of negligence, the court is opening up to an unreasonable level of subjectivity. It seems like the necessity of an expert witness should remain intact for all but per se negligence cases.
I do not think the court is opening up to an unreasonable level of subjectivity when it is obvious that a lawyer had a duty to their client. As the facts stated, the client contacted the attorney on several different occasions to ensure that the mortgage was recorded correctly and the attorney replied in the affirmative each time. All the attorney had to do was double check the recorded mortgage which he failed to do. There is no subjectivity here. It is objectively clear that the attorney breached a duty here.
I think that requiring an expert in all negligence cases even when the negligence is clear, is a waste of time and money for all parties involved. I believe that if the negligence is so clear that a reasonable person would agree with the assumption of negligence, than an expert should not be required. Although on the other hand, if there is a reasonable question as to whether there is negligence, an expert should be required in order to ensure a fair trial.
I agree with Ms. Saini opposition to Mr. Feinstein's opinion. I further add that the court should not add the needless expense of an expert where the attorney's negligence is clear, such as in this case or when they fail to file a suit within a statute of limitations period.
Requiring an expert in this case would serve only the desire to discourage lawsuits by clients by reducing the amount the plaintiff receive at the end of the case because of the extra cost of producing an expert here.
I agree with Ms. Saini and Mr. Anzalone's opinions. It is almost common knowledge that an attorney can find an expert to testify to anything they would want the jury to hear. It seems like requiring a "hired gun" to come testify to the jury about something that is so blatantly obvious is just a waste of time and money.
I'm curious as to whether anyone knows how far a real estate attorney must go to ensure that the mortgage was recorded correctly? Is it reasonable for them to rely on a representation made to them that it was properly recorded? Maybe I should know the answers to these questions, but I think that experts should be available in all negligence cases because the underlying case may not be as clear as it seems.
I agree with Ms. Gaedcke and am also curious to see who oversees or ensures that a deed or mortgage is recorded correctly. It seems like if this is not the responsibility of the attorney, this may ultimately fall on the homeowner. That may cause problems because who's duty is it then to inform the homeowner of this responsibility and ensure that it is actually done?
I agree with the holding in this case. The trouble and expense of hiring an expert is to aid in understanding the testimony and illustrate the assertions made by the plaintiff. Easily understandable facts and testimony and indisputable assertions obviate the need for an expert.
I also agree with the holding in this case. The attorney here simply did not take reasonable care in executing his duties. There is no value in recording a mortgage if it is not recorded correctly; it might as well have never been recorded at all--and the client wouldn't have paid theattorney to NOT record a mortage. No expert is needed to show that if one takes on a responsibility, he should at least make sure that he's completed the task.