Legal Malpractice Law Review : Professional Responsibility Case Summaries & Commentary : Bennett J. Wasserman : LegalMalpractice.com : Lawyer Malpractice & Legal Ethics

Prosser v. Zeldin, 2010 WL 5392707

NJ: Underlying Divorce; Affidavit of Merit 

Student Contributor: Mordechai Buls

FACTS: Defendant represented plaintiff in a divorce proceeding for a marriage in which the ceremony was performed in Ocho Rios, Jamaica. In the divorce case Plaintiff claimed that since there was no valid license, the marriage was not legal. The court rejected this claim stating that a lack of license doesn’t prove the marriage was illegal when there are other circumstances presented during the proceedings that would establish the marriage. Plaintiff settled on the first day of trial.
Subsequently, the plaintiff filed a malpractice suit against the defendant lawyer claiming that he coerced the plaintiff to accept the terms of the settlement and that throughout the proceedings Plaintiff kept telling the defendant that there was no public record of a valid marriage license. When the plaintiff failed to submit an affidavit of merit even after a three-week extension the court dismissed the complaint with prejudice.  On appeal, l the plaintiff claimed that an affidavit of merit was not required since the act was “blatant and a matter of common sense”.

Issue: Does the Plaintiff need to submit an affidavit of merit in this case?

Ruling: Yes. A condition precedent to maintaining a claim for legal malpractice against an attorney is an affidavit of merit. Although an exception is made where the claimed malpractice involves matters of common knowledge, which refers to the ability of the jury to resort to “ordinary understanding and experience, to determine a defendant's negligence”. This case is different since validity of a marriage is determined by the laws of the jurisdiction where it was performed and Jamaica’s marriage laws are not common knowledge in New Jersey.

Lesson: When suing an attorney for malpractice in New Jersey always err on the side of caution and get an affidavit of merit.

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Richard Tietjen, Robert H. Ahrens, III, and Wainwright Estates Partners, LLC v. Richard Mazawey, Esq. (per curiam) (NJ App. Div. Jan. 12, 2012 UNPUBLISHED)

NJ: Underlying Commercial Action

Student Contributor: Jennifer Hanley

Facts: In this legal malpractice case, plaintiffs appeal from the order summarily dismissing their legal malpractice claim against defendant. Plaintiffs had retained defendant to represent them as they negotiated a commercial real estate transaction with another corporation. Defendant warned plaintiffs on various occasions about problematic provisions in the contract they were negotiating. Ultimately, the plaintiffs’ transaction fell through, defendant stopped being their attorney, and plaintiffs hired new representation to resurrect the agreement. Plaintiffs filed a legal malpractice claim against Defendant. At trial, they produced an expert witness report, purporting to demonstrate defendant’s negligence while representing plaintiffs. However, the trial court held that the witness’s expert report was actually inadmissible “net opinion,” in that it failed to provide any factual underpinnings to support the expert witness’s opinion that legal malpractice had occurred.

Issue: In a legal malpractice case, does the “net opinion” rule require that an expert report, submitted to show an attorney’s negligence, must identify specific acts or omissions through which the attorney’s conduct deviated from the standard of care?

Ruling: Yes. Under New Jersey law, an expert opinion “must be founded on ‘facts or data.’” Hinsenaj v. Kuehner, 194 N.J. 6, 24 (2008). As such, the “net opinion rule requires an expert witness to give the why and wherefore of his [or her] expert opinion, not just a mere conclusion.” Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540 (App.Div.), certif. denied, 145 N.J. 374 (1996). When an expert opinion is unsupported by factual evidence, it is inadmissible. See id.

Lesson: In this case, the expert opinion submitted by the plaintiff’s expert failed to draw a proximate cause connection between the defendant’s alleged negligence and plaintiffs’ damages. The expert report made no reference to any actual occurrence of the defendant failing to meet any contracted deadlines or failing to inform the plaintiffs they were going to miss a deadline in their contract. Unlike a satisfactory expert report, the report submitted by the plaintiffs’ expert was an inadmissible “net opinion,” because it only listed statements of factual history and “general principles gleaned from case law” without connecting the two.

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Reilly, Supple & Wischusen, LLP v. Malcolm Blum v. Michael P. Ambrosio (NJ App. Div. March 9, 2011 UNPUBLISHED)

NJ: Underlying legal malpractice action

FACTS:  Attorney Blum was sued by a former client   in an underlying legal malpractice action,   which was dismissed on summary judgment eventhough plaintiff had a legal malpractice expert report.  Blum was represented by the Reilly Supple law firm, which now  sues him for unpaid legal fees.  Apparently seeking contribution from another source to help pay those outstanding legal fees in his successful defense,   Blum filed a third party complaint alleging legal malpractice  against the plaintiff’s legal malpractice expert in the unsuccessful  underlying malpractice case-- Michael P. Ambrosio, a law professor, who had issued the report which could not pass the muster of the summary judgment motion.

ISSUE: 1)  Does the successful defendant in a legal malpractice case have a  right to sue the opposing expert  for legal malpractice where the  opinions expressed by the expert   were rejected by the Court?

RULING: NO.

1. Under NJ law, for a non-client to sue a lawyer, even when that lawyer is on the opposing side, there must be "an invitation to rely and reliance,  [which] are the linchpins of attorney liability to third parties." Petrillo v. Bachenberg, 139 N.J.472, 483-4 (1995); Banco Popular, N.A. v. Gandi, 184 N.J. 161,181 (2005). 

"Far from relying on Ambrosio, Blum successfully opposed Ambrosio's opinion in the underlying malpractice case."

2.  In NJ, the expert witness is protected by the absolute litigation privilege and cannot be sued for the opinions expressed in his expert report.

The court based its decision on  Hawkins v. Harris,  141 N.J. 207 (1995), which adopted California’s  formulation of the litigation privilege, where "the undelrying principles are substantially the same as those underlying the New Jersey privilege":

 The absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Id. at 369. Whether a defendant is entitled to the privilege is a question of law.  

LESSON:  The absolute privilege now applies to the expert witness in legal malpractice cases. Although there are a few cases in other states that appear to offer a different view, the Court  pointed out that there are controls that justify granting the expert witness the absolute privilege which are germane to the legal malpractice expert. Here’s what the Hawkins decision also said: 

Because of their extraordinary scope, absolute privileges "have been limited to situations in which authorities have the power both to discipline persons whose statements exceed the bounds of permissible conduct and to strike such statements from... the record." ... The absolute privilege "does not extend to statements made in situations for which there are no safeguards against abuse." ... ("[I]n strictly judicial proceedings the potential harm which may result from the absolute privilege is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions * * *.");  

Editor's Note: For examples of where the Court remedied the  broad scope of the absolute privilege of a legal malpractice expert by striking the expert's report or testimony as a "net opinion" see:  Celucci v. Bronstein, 277 NJ Super 506 (1994) and Kaplan v. Skoloff  & Wolfe, 339 N.J. Super. 97 (2001).  

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Aubin v. Barton, 123 Wash. App. 592 (2004)

WA: Underlying Divorce Action

Student Contributor: Ben Doyle

Facts:  Client sued  attorney for malpractice following attorney’s representation in the dissolution of marriage. Client claimed that attorney’s conduct at a settlement conference did not meet the standard of care. Client was the grantee of stock options. Attorney failed to give correct advice concerning the separate property character of the stock options. Client claims that without attorney’s mistaken advice, he never would have entered into the settlement agreement that treated the options as community property. In the malpractice action, the court found, during the trial within a trial, that, if the action had gone to court, that court would have found that client owned 60% of the options and the remaining 40% were community property. The court found in favor of client and attorney appealed.

Issue: Whether the trial court erred not permitting expert testimony to reach the conclusion that  the stock options were 60% clients separate property.

Ruling: The trial court had excluded expert testimony on the ground that only the attorney can testify at the trial within the trial. That exclusion was improper. The issue was whether the options were given for past services or for present and future services and the attorney’s expert witness, who had evidence contrary to the disposition of the court, should have been heard. The error was not harmless and the decision was reversed.

Lesson: If an attorney is being sued for malpractice, it is important to line up expert witnesses that can testify that the attorney’s conduct was not negligent. The court must determine the validity of the underlying claim and the attorney has every right to present evidence to defend his or her position.

“Where it is alleges that an attorney committed malpractice in the course of litigation, the trial court hearing the malpractice claim retries, or tries for the first time, the client’s cause of action that the client contends was lost or compromised by the attorney’s negligence, and the trier of fact decides whether the client would have fared better but for the alleged mishandling.

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Pierce v. Colwell, 563 N.W.2d 166 (Wis. Ct. Apps. 1997)

WI: Underlying criminal matter

Student Contributor: Jeff Cain

Facts: Client was charged with ten counts of sexual assault. He was represented by another lawyer during the arraignment and the jury trial, which found him guilty. Lawyer Colwell represented him during the sentencing, in which he was sentenced to 20 years in prison. The client unsuccessfully appealed his conviction, arguing among other things, that his due process rights were violated because the criminal court did not personally read the information to him at the arraignment. The client then sued the lawyer for not raising this fact at the sentencing.

Issue: How can a client prove that his former lawyer committed malpractice?

Ruling: To show lawyer malpractice in a criminal action, you must show that you would have succeeded in court if it were not for the lawyer’s failure to exercise reasonable care. In this case, the client had to show that he would have won if the lawyer argued that the client was prejudiced by the failure of the court to personally read the information to the client. To show this, the client would have to provide expert testimony to prove this. Since the client did not name an expert within the time limits, the court dismissed his claim.

Lesson: In Wisconsin, to prove a breach of a duty of care, expert testimony is generally required, since duty of care is outside of the area of common knowledge.

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Bourke v. Conger, US Ct. of Appels, 7th Circ., April 19, 2011. 

Facts: Bourke was convicted of murder in Illinois state court, and after the conviction was turned over on appeal, filed malpractice claims against his defense attorneys. Bourker alleged that defense counsel's voire dire of the jury fell below acceptable standards of care.

Bourke's former attorney's argued that even if they breached their duty to Bourke, he could not establish proximate cause. 

Issue: Did Bourke set forth a valid cause of action for legal malpractice? 

Ruling: No. 

First, the Court stated the elements of a cause of action for legal malpractice: 

A plaintiff asserting a legal malpractice claim based on Illinois law must prove: (1) the defendant attorney owed the plaintiff client a duty of due care arising from an attorney-client relationship, (2) the attorney breached that duty, (3) the client suffered an injury in the form of actual damages, and (4) the actual damages resulted as a proximate cause of the breach.

The Court then explained why Bourke failed to establish proximate cause: 

Bourke depended exclusively on Thomas's expert report to establish the causation element of his claim. While expert testimony is one of the types of evidence that a plaintiff like Bourke could normally rely on to ward off summary judgment, it is well established that an expert report that lacks foundation and depth will be given little consideration by courts. In order for an expert report to create a genuine issue of fact, it must provide not merely ... conclusions, but the basis for the conclusions. As the district court noted, the Thomas report does not support its conclusion that the Appellees' performance during voir dire caused the jury to find Bourke guilty with analysis, facts or reasoning. While the report discusses various ways in which the Appellees could have better represented Bourke's interests (e.g., by using their peremptory challenges, by questioning jurors for their opinions regarding the use of alcohol), this discussion only goes towards establishing that the Appellees breached their duty to Bourke, not causation. The Thomas report fails to identify facts that support its conclusion that the Appellees' alleged errors had any role in causing the jury to find Bourke guilty. This shortcoming prevents the Thomas report from creating a genuine, disputed issue of fact concerning causation.

Lesson: Plaintiff must establish proximate, in Illinois, by showing that "but for" his attorney's negligence, he would not have sustained the actual damages complained of. One way to do it is by expert opinion. However, the opinion must be supported by the "whys and wherefores" of the causal connection between the attorney's breach and the injury or damage complained of. 

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Healy v. Finz & Finz PC, 2011 NY Slip Op 1616, App. Div. 2nd Dept., 2011. 

Facts: The plaintiffs retained the defendant law firm to represent them in the underlying medical malpractice action, in which they alleged that the doctors should have delivered plaintiffs' surviving babies immediately after learning that one of the three fetuses had died, and that the delay caused injury to one surviving child.

The plaintiffs' expert medical witnesses were unable to testify as to when the injury occurred, however, and the trial court held that the plaintiffs could not establish the proximate cause element of medical malpractice. The appellate court affirmed. Shortly thereafter, plaintiffs filed suit against their former attorneys. 

Issues: Were plaintiffs' former attorneys liable for the consequences of the experts' inability to testify to key information? 

Ruling: No. 

The defendant attorneys presented affidavits from medical experts in the legal malpractice action alleging that the injury would have occurred immediately upon the death of one fetus in any event - a position directly adverse to that of their former client in the medical malpractice action. The Court allowed this, and in support of its decision to grant summary judgment to the defendants, provided: 

Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice...[T]he firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and [] the plaintiffs failed to raise a triable issue of fact in opposition...

Lesson: In New York, the professional judgment rule can serve as a defense to a claim for legal malpractice alleging negligent selection of experts. Further, the Courts will allow the defendant attorneys to submit expert testimony in the legal malpractice action that is directly at odds with the position they advanced on behalf of their client in the underlying action. 

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Hedinger & Lawless, LLC v. Betal Enterprises, Inc., Superior Court of New Jersey, App. Div., March 10, 2011. 

Facts: Defendants sued Hedinger & Lawless for legal malpractice for, among other things, failing to file an answer and third-party complaint. Defendants claimed that as a result of this alleged failure, a default judgment was entered against them which prohibited them from obtaining loans for new business ventures. 

In support of their theory against their former attorneys, Defendants submitted an expert report of William H. Micheslon, Esq. The expert opined, in part, that Plaintiff attorneys "should have filed an answer, and on the eve of expiration of the ninety day period, file[d] the third-party complaint...to slow [the adversary's] case down and to [] improve bargaining power." The expert conceded, however, that had Defendants' former attorneys followed this course of action, the adversary in the underlying action would have eventually succeeded on a motion for summary judgment. 

The trial court rejected the opinion as a net opinion because it was based solely on "personal opinion of strategy."

Issues: Was the trial court correct in excluding the expert report as a net opinion? What must an expert rely upon in opining on a claim for legal malpractice? 

Ruling: The Appellate Division agreed with the trial court. First, it explained the need for an expert report in certain legal malpractice cases:

Expert testimony is required in cases of profesional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable.

***

Strategic decisions tend to be an area where expert testimony is required. 

With regard to the inadequacy of the report proffered by Defendants' expert, the Court noted: 

The burden of proving the causal relationship rests with the client and cannot be satisfied by mere conjecture, surmise or suspicion. 

***

An expert's opinion must be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial...An expert is required by this rule to give the why and wherefore of his or her opinion, rather than a mere conclusion. 

***

Not only was [the expert's] opinion not based on standards accepted by the legal community, but his strategy of delay for the sake of delay is diametrically opposed to the duties of an attorney set forth in Rule 1:4-8 and thus cannot support a claim of breach."

Consequently, the Appellate Division affirmed the trial court's Order barring Defendants' expert report as net opinion. 

Lesson: In New Jersey, an expert report must rely upon facts in the record, reference case law, treatises, and/or rules of professional conduct, and identify particular departures in the former attorneys' conduct as compared to the acceptable standards of practice. 

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Wilson v. McNeely, Court of Appeals of Georgia, January 24, 2011.

Facts: McNeely represented Wilson in the purchase of a parcel of real property.  Shortly thereafter, Wlson brought a malpractice action against McNeely and presented his brother as an expert witness with regard to an attorney's standard of care in a real estate closing.  McNeely moved to bar this testimony on the basis that Wilson's brother was not a practicing lawyer during the relevant time period.

The trial court granted McNeely's motion and Wilson appealed.

Issue: Must an expert witness in a legal malpractice action be a practicing attorney?  

Ruling: Yes.  

Here, the Appellate Division excluded Wilson's brother even though he contended that he was actively engaged in the practice of law as "corporate counsel" for a family owned business.  The Court found that, although an attorney may practice law while representing the interests of a single client, as many in-house corporate attorneys do, the record in this case did not support the purported expert's contention that he was actively engaged in the practice of law because he did not: 

1. Represent entities or individuals in court; 
2. Draft or file pleadings in judicial proceedings; or 
3. Prepare the type of documents or perform the legal tasks at issue in the litigation.

Accordingly, the Appellate Division affirmed the lower court's directed verdict in favor of McNeely.

Lesson: In Georgia, an expert witness in a legal malpractice action must be actively engaged in the practice of that area of the law in which he purports to give an opinion.

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Beecher v. Greaves, 73 Conn. App. 561, 808 A.2d 1143 (Conn. App. 2002)

CT: Underlying foreclosure action

Student Contributor: Laura Binski

Facts: The lawyer represented the client in two foreclosure actions in 1996. In 1997 and 1998, the client brought a legal malpractice action grounded in professional negligence against the lawyer. The client claims that the lawyer was negligent in allowing the foreclosure sale to be significantly lower than the property appraisal. The client intended to call Mr. Heberger as an expert witness on the issue of causation, and Mr. Weinstein as an expert witness on the issue of liability. However, the client did not disclose her intention to call Mr. Heberger until shortly before trial. As a result, the court precluded Mr. Heberger’s testimony and directed verdict for the defendant. The client now appeals the rulings of the trial court.

Issue: Did the trial court improperly exclude the testimony of the client’s expert witness and improperly direct verdict in favor of the lawyer?

Ruling: No. “Any party expecting to call an expert witness at trial must disclose the name of the expert, subject matter on which the expert will testify, and summary of the facts and opinions about which the expert will testify to all other parties within a reasonable time prior to trial.” In this case, the client should have provided notice much earlier that she intended to call Mr. Heberger as an expert on causation issues. The late notification might unduly prejudice the defendant and interfere with the orderly progress of the trial.

“A trial court must direct a verdict for the defendant if a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail.” Here, the client’s expert Mr. Weinstein only discussed issues of liability. Causation is a requisite element in legal malpractice cases. The client’s failure to provide an expert on the issue of causation was fatal to her legal malpractice claim, so the trial court was correct to direct verdict in favor of the defendant.

Lesson: This case serves as a reminder for clients to be prompt in choosing and disclosing their expert witnesses. In this case, the client filed the legal malpractice actions in 1997 and 1998. However, she waited until just a few weeks before her trial in 2001 to disclose her intention to call Mr. Heberger to testify about causation. As a result, the expert was not permitted to testify, and the client lost her entire case. 

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Cadle Co. v. Sweet & Brousseau, PC, (US Dist. Court, ND Texal, Dallas Div. 2006)

TX: Underlying litigation

Student Contributor: Megan Diodato

Facts:   The client brought this action against former attorney and designated a former Texas Supreme Court Justice as an expert witness concerning legal malpractice issues in this case. Former Justice issued an expert report stating that the firm and their employee lawyer was negligent and guilty of malpractice in their conduct. The Justice opined that if an opposing lawyer asks the court to take judicial notice of the court’s file, the other lawyer’s duty is to either know exactly what is in file or call for a recess to determine what’s in there before he can agree that the judge take judicial notice of it. The attorney filed a motion to exclude this expert testimony.

Issue: Can client qualify a former Justice as an expert witness offering testimony on legal malpractice under the Federal Rules of Evidence.

Ruling: No.  In evaluating whether expert testimony may be admitted the key factors are reliability and relevance. The client did not produce sufficient evidence to qualify witness as an expert because of the failure to produce evidence hat Justice has sufficient specialized knowledge to assist the trier of fact in deciding the malpractice issues in this case. The client only provided evidence that when the Justice has conducted expert work it was primarily in legal malpractice cases. The particular issues the Justice addressed in such cases is unknown. A person who may be licensed attorney or Judge, who holds years of experience in the practice of law will not qualify him/her to give an expert opinion on every legal question. The client and expert did not demonstrate the facts or data relied upon in reaching opinion and therefore not the product of reliable principles and methods.

Lesson: Lifetime experience as a lawyer or Judge does not qualify one as an expert in all areas of law-specialized knowledge in particular area is necessary.

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Grassi v. Hyden, 2010 Ark. App. 203 (March 3, 2010). 

Facts:  Grassi retained Hyden with regard to the disposition of his majority interest in a lumber company.  Ultimately, upon Hyden's advice, Grassi proceeded with an Employee Stock Retirement Plan ("ESOP").  The lumber company, however, was unable to make payments to the ESOP after several years and, as a result, Grassi lost hundreds of thousands of dollars.   He subsequently sued Hyden for legal malpractice. 

At trial, Grassi presented the testimony of an attorney, Wyck Nisbet.  Nisbet testified about the general process of creating an ESOP, and stated that a feasibility study is a critical part of deciding whether to form one.  He did not, however, specifically say that Hyden's representation fell below the standard of care, or that in this particular instance, the ESOP was not a reasonable recommendation in light of the lumber company's profitability.

Hyden moved for summary judgment in the malpractice suit, alleging that Grassi's did not present expert testimony as to the applicable standard of care, breach, and proximate cause.

Issue:  What elements of the legal malpractice action must an "expert" witness address?

Ruling:  Expert testimony must establish that the allegedly negligent attorney departed from the applicable standard of care, and that this caused the plaintiff to sustain the damages of which he complains.

Recognizing that feasibility of an ESOP is a complex subject that is not within the province of a jury, the Court first held that the issue presented by this case was not one of "common knowledge," and that an expert was certainly necessary.

Interestingly, the Court did not view Nisbet as Grassi's expert.  Instead, it ruled that Nisbet's testimony demonstrated a need for an expert to opine on whether or not, based upon the then existing conditions, it was a reasonable for Hyden to advise Grassi to proceed with an ESOP.  In other words, Nisbet's general statements as to when and how an ESOP should be created were not enough - Grassi needed an expert to opine as to the specific standard of care applicable to Hyden and how he breached that standard.

Accordingly, the Court granted Hyden's motion for summary judgment. 

Lesson:  In a legal malpractice case where the issues are not subject to the rare "common-knowledge exception," it is essential for plaintiff to present expert testimony on (1) the applicable standard of care; (2) the breach of that standard; and (3) how the breach proximately caused the plaintiff's damages.

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Hoagland v. Sandberg, Phoenix & Von Gontard, 385 F. 3d 737 (2004)

7th Cir.: Underlying legal malpractice claim

Student Contributor: Clem Durham

Facts: The district court determined after a bench trial that Hoagland's suit failed as a suit for legal malpractice. Hoagland doesn't disagree. His grievance is that he should have been allowed either to amend his complaint to make clear that his claim, which he believes the district judge misunderstood, is not malpractice but is rather breach of contract or alternatively breach of fiduciary duty, or allowed to dismiss his suit without prejudice and start over. The claim, in substance and without regard to how it might be characterized, is that the Sandberg law firm represented the adversaries — a corporation (Midwest) and its swindling president — in a derivative action and used its dual representation to prevent the corporation from recovering assets of which the president had wrongfully deprived the corporation; that the law firm had wrongfully accepted payment of its fees from the corporation (the client whose interests the firm had sacrificed); and that it should therefore be required to rebate ("disgorge") the fees to Hoagland for the benefit of the corporation.

Issue: Is it proper to dismiss a claim as duplicative, when a breach of fiduciary duty claim is based on the same operative facts as a legal malpractice claim, and results in the same injury?

Ruling: Yes. Hoagland cannot be permitted, by recharacterizing the claim — whether by calling the conflict of interest a breach of fiduciary obligation or by contending that his contract with the law firm contained an implied promise not to commit such conflicts — to get around the requirement of presenting expert testimony. That is the kind of formalist move that courts rightly reject. Illinois courts hold that "when a breach of fiduciary duty claim is based on the same operative facts as a legal malpractice claim, and results in the same injury, the later claim should be dismissed as duplicative." The fact that restitution was sought instead of conventional damages also does not alter the nature of the suit. Restitution is a remedy, at least when sought as here as reparations for a tort. Asking for restitution doesn't change the cause of action.

Lesson: Make sure all claims are included in the initial complaint, because if a new theory of recovery is brought too late, it may be deemed duplicative. 

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Guyton v. Hunt, Court of Civil Appeals of Alabama, July 23, 2010.

Facts:  Guyton was convicted of sexually abusing a minor.  After his conviction, he retained Hunt to prepare and file a motion for new trial, and if that was denied, file an appeal.  Hunt's motion for a new trial was denied, but he never advised Guyton or Guyton's family members.  Shortly thereafter, Guyton filed an action against Hunt alleging fraud and legal malpractice, arguing that the delay in learning his motion had been denied caused a delay in filing his notice of appeal.  Guyton further argued that he incurred damages by paying another attorney to handle his appeal even though Hunt had already been paid to do so.  

The lower court dismissed the complaint against Hunt for failure to produce an expert report. Guyton appealed.

Issue:  

1. Could Hunt pursue a fraud claim separate and apart from a legal malpractice claim against Guyton?
2. Was Hunt's negligence a blatant error, or was expert testimony necessary to establish a breach of the duty of care? 
3. Was Hunt's negligence the proximate cause of any damage sustained by Guyton? 

Ruling: 

Alabama's Legal Services Liability Act provides, in pertinent part, as follows: 

(1) Legal service liability action. Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider. A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.

Accordingly, Guyton's claim for fraud was subsumed by his claim for legal malpractice.  

The Appellate Court, however, disagreed with the lower court and held that "failure to notify a client of a ruling on a motion in time for the client to timely file an appeal constitutes a breach of the standard of care that is so apparent that expert testimony is not required for a layperson to understand that breach."  Nevertheless, the Appellate Court affirmed the lower court's dismissal of the malpractice action, since: 

Any delay, if indeed there was a delay, in filing Guyton's notice of appeal that may have been caused by Hunt's failure to "timely" notify Guyton of the denial of his postjudgment motion obviously did not preclude Guyton from timely filing his notice of appeal or prevent the Court of Criminal Appeals from considering his appeal. Guyton has not demonstrated that Hunt's delay, if any, caused Guyton harm. Furthermore, we conclude that based upon the record before us, Guyton failed to demonstrate that the outcome of his criminal case, i.e., his conviction and sentence, would have been any different had Hunt notified him of the denial of his postjudgment motion.

Moreover, with regard to damages, the Appellate Court noted that there was no evidence "Guyton himself contributed to [attorneys' fees].  Because Guyton did not pay any portion of the attorneys' fees in the underlying criminal action, he cannot claim he was damaged as a result of any allegedly unnecessary payments incurred because of Hunt's conduct."

Lesson:  In Alabama, multiple claims against a legal services provider will be subsumed under the "legal malpractice" umbrella.  Even where an attorney commits blatant negligence, the claim will be dismissed unless the former client is able to establish that he sustained damages as a result of the attorney's errors and omissions. 

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Perry v. Emerson, Supreme Judicial Court of Maine, October 26, 2010. 

Facts:  Emerson initiated a fee arbitration proceeding against her former attorneys, alleging that she never agreed to be responsible for the legal fees incurred in her divorce action and she was led to believe her husband would be responsible for the fees.

The arbitration panel determined that: 

Emerson routinely asked Perry and K&P about her obligation to pay fees billed to her, indicating that she doubted that her husband would actually pay her fees, and that she "was fully cognizant of" the possibility that a provision requiring her then-husband to pay her attorney fees "might not be a part of the ultimate judgment or settlement agreement." The panel also found that Emerson was aware that the final divorce agreement did not require her husband to pay her legal fees.

Based on this determination, Emerson's attorneys moved for summary judgment in a pending malpractice action.  The lower court concluded that Emerson's prior litigation of factual issues concerning her obligation to pay her own attorney's fees before the arbitration panel precluded re-litigation in the form of a malpractice complaint.  Emerson appealed.

Issues:  Can the factual determinations of a fee arbitration committee preclude litigation of a pending malpractice action? 

Ruling:  Perhaps. 

The findings made by a Fee Arbitration Panel, to the extent necessary to its determination, have preclusive effect for purposes of collateral estoppel.  A valid and final award by arbitration has the same effect under the rules of res judicata as a judgment of a court, so long as the process contains the essential elements of "adjudication":

(1) adequate notice, (2) the right to present evidence and legal argument and to rebut opposing evidence and argument, (3) a formulation of issues of law or fact to apply rules to specified parties concerning a specified transaction, (4) the rendition of a final decision, and (5) any other procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question.

The lack of de novo review of the panel's decision is not a factor that is considered in determining the decision's preclusive effect. 

Based on this analysis, the Court held that Emerson's claim of an oral agreement/contract with her former attorneys that she would not pay her own attorney's fees was necessarily barred. 

The Court also barred, for different reasons, Emerson's claim of negligence against her former attorneys for their failure to include a provision in the settlement agreement providing that her husband would pay her attorney's fees.  The Court noted that the arbitration panel's determinations would have no bearing on this issue, since it was not necessary to the resolution of the fee dispute. Rather, Emerson was estopped from pursuing her negligence claim because she failed to present necessary expert testimony: 

The appropriate standard of care, and whether [the attorneys] breached a duty of zealous representation to Emerson by negotiating a divorce settlement that did not include a requirement that Emerson's ex-husband pay all of her attorney fees, is not obvious or within a layman's common knowledge and would have required expert testimony.

Lesson:  A fee arbitration panel's determinations will have preclusive effect on a pending or subsequent malpractice litigation, so long as those factual determinations were necessary to a resolution of the fee dispute.  Expert opinion is necessary to contest whether or not an attorney adequately drafted a settlement agreement.

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Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C.180 S.W.3d 889 (Tex. App. 2005)

TX:  Underlying Contract Litigation

Student Contributor: Evan Kusnitz

Facts: Attorneys represented Client 1 and Client 2 in a breach of contract suit against their employer. Attorneys told the two clients to calculate their own damages for presentation at the trial. Client 2 had a financial background; Client 1 did not. Both clients testified at trial regarding their damages. The jury found for both clients on the breach of contract claim. However, while it awarded Client 2 $4,000,000, it awarded nothing to Client 1.

In Client 1’s subsequent malpractice suit against Attorneys, he alleged that Attorneys were negligent because they failed to hire a damages expert, because Client 1 had no financial background. In response to Attorneys’ summary judgment motion, Client 1 filed two affidavits: one from Expert Attorney, and the other from Expert Accountant.

Issue: Can a non-lawyer provide expert testimony in a legal malpractice case?

Ruling: Yes. A non-lawyer expert may testify to an issue in controversy that is within his expertise. Furthermore, sometimes an expert attorney’s testimony is insufficient to establish causation, and a non-legal expert would be required. See Rangel v. Lapin, 177 S.W.3d 17 (Tex. App. 2005) (accident reconstruction expert needed in addition to attorney expert).

Lesson: A non-lawyer expert can testify in a legal malpractice case to matters within his expertise. 

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Bagan v. Karl Hays, et al., Court of Appeals of Texas, Third District, August 12, 2010. 

Facts:  The Defendant attorney served as Plaintiff's divorce attorney in the underlying matrimonial action.  As part of his representation, he drafted a settlement agreement providing that a number of business entities would remain in the wife's name until Plaintiff paid her a sum certain over a period of time.  Plaintiff, however, sold the business entities prior to completing his payment obligations to his former wife.  

After his former wife sued him for breach of contract, Plaintiff brought the instant action alleging legal malpractice and breach of fiduciary duty.  Specifically, Plaintiff alleged, among other things, that but for his former attorney's negligent drafting, his wife would not have sued him for breach of contract. 

Plaintiff failed to timely produce an expert report.  In opposition to the Defendant attorney's motion for summary judgment, Plaintiff argued that "negligent drafting" falls within the "common knowledge" exception, and therefore, the trier of fact did not need the assistance of an expert witness in determining how his former attorney violated the applicable standard of care. 

Issue:  Is expert opinion necessary to determine whether an attorney's drafting of a provision in an agreement fell outside the applicable standard of care? 

Ruling:  Yes.  

[T]he issue of whether a provision in a divorce decree demonstrates a breach of the applicable standard of care is not an issue that any layperson can understand.  

The Court distinguished the attorney's alleged negligence here from classic examples of common knowledge, i.e. missing the statute of limitations, and affirmed the trial court's decision granting Defendants' motion for summary judgment. 

Lesson:  Expert testimony will be necessary where the fact finder needs to make a decision with regard to whether an attorney breached the standard of care applicable to negotiating and drafting the terms of an agreement.  

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Fuschetti v. Berman 128 N.J. Super. 290, 319 A.2d 781 (Law Dvi. 1974)

NJ: Underlying personal injury action; statute of limitations

Student Contributor: Ryan O'Donnell

Facts: Plaintiff slipped and fell as she was leaving the General Motors exhibit at the World’s Fair. She consulted defendant who was then an attorney at law in New Jersey to help her make a personal injury claim. Plaintiff claims that for the next 6 years she phoned defendant 2 to 3 times a year to inquire about the case, and was told that it was moving slowly. After consulting with another attorney she found out that no personal injury suit had been instituted on her behalf, and that the New York statute of limitations barred her personal injury claim after 3 years. In the ensuing malpractice trial the plaintiff contended that since she lost the potential for settlement, expert testimony as to what a reasonable settlement would have been should be admitted.

Issue: In a malpractice action, can an expert testify as to what a reasonable settlement value for a settlement that was never reached would have been?

Ruling: No. Expert testimony as to the reasonable value of a would be settlement is inadmissible because it is questionable whether or not a settlement would have been able to have been reached.

“Because no expert can suppose with any degree of reasonable certainty the private blends of hopes and fears that might have come together to produce a settlement before or during trial, expert testimony as to reasonable settlement value will be excluded as irrelevant.”

The court found that the probative value of such testimony would be outweighed by the risk that it will confuse the issue and necessitate an undue consumption of time.

Lesson: Expert testimony will not be allowed to determine what a reasonable settlement would have been in the underlying case of a malpractice action. An expert can testify as to whether a previously reached settlement agreement was reasonable, but if no settlement was ever reached he can not testify as to the speculative value of a settlement that would have occurred. 

Editor's Note: For a different and more current view, see Kelly v. Berlin, 300 N.J. Super 256 (App. Div. 1997), which allowed expert testimony on settlement value. 

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Szaferman, Lakind, Blumstein, Blader & Lehman v. Parise, Superior Court of New Jersey, Appellate Division, February 24, 2010

Facts:  Defendants retained Plaintiff attorneys in an underlying residential construction matter.  Upon the submission of summary judgment motions in the underlying matter, defendants instructed their attorneys to cease all legal work.  The attorneys advised of the need to prepare for upcoming court events and trial. 

Prior to trial, however, the underlying litigation was dismissed upon entry of a mutual release, which included the parties' agreement to satisfy their respective counsel fees and costs.  Despite this agreement, defendants paid only half of the outstanding legal fees and costs.  In response to Plaintiff's efforts to collect the remainder of their fees, Defendants filed an action for malpractice.  Specifically, Defendants disputed the reasonableness of certain time entries, cited to alleged billing irregularities, and asserted that the fees charged were excessive for the work performed. 

The lower court dismissed the malpractice claim for failure to obtain an expert report.  Defendants appealed.

Issue:  Is the reasonableness of attorney's fees an issue of  "common knowledge," or is an expert opinion necessary? 

Ruling:  An expert opinion is necessary: 

Expert testimony is required in cases of professional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable.  This is because the duties a lawyer owes to his client are not known by the average juror.

The Court concluded that Defendants' alleged dissatisfaction with the amount of legal fees charged, supported only by their personal experience in paying other attorneys was not a sufficient factual basis for their malpractice claim.  The Court also rejected Defendants' argument that the jury ought to disallow all contested charges, unless Plaintiff provides sufficient justification.

Lesson:  An expert opinion is necessary to successfully dispute the reasonableness of attorney's fees.

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Estate of Nevelson v. Carro, Spanbock, Kaster et al. 259 A.D.2d 282; 686 N.Y.S.2d 404 (1st Dept.1999)

NY Underlying Estate Tax Matter

Student Contributor: Natalie Resto 

Facts: Plaintiff corporation was created upon the advice of defendant law firm for the purpose of organizing the financial affairs of Louise Nevelson, a deceased sculptor, and in an attempt to cause her artwork and the income from it to pass outside of her taxable estate. Nevelson’s son, who was also the executor of her estate, owned the corporation. This malpractice action arose after the IRS assessed millions of dollars in estate taxes against Nevelson’s estate and gift taxes against her son. After Nevelson’s death, the IRS determined that the corporation was a sham used to gift the decedent’s income and assets to her son, and that all the assets of the corporation should have been included in the sculptor’s gross estate. The plaintiffs claimed that the law firm never advised them of any risks of potential gift or estate tax liability that could arise based on the level of compensation that the corporation paid Nevelson.

Issue: Did the law firm depart from the requisite standard of care when they failed to adequately advise the plaintiffs that their failure to substantially compensate the decedent could result in adverse tax consequences under the plan that they recommended?

Ruling: Yes. The court found that here the defendants offered only conclusory, self-serving statements with no expert or other evidence that would establish that they did not depart from the requisite standard of care. The defendants had an obligation to do so. 

Lesson: The requirement that a plaintiff come forward with expert evidence on the professional’s duty of care may be dispensed with where ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service. Id. at 283; Kulak v. Nationwide Mut. Ins. Co., 40 NY2d 140, 148.

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Storm v. Golden, 371 Pa. Super. 368, 538 A.2d 61 (1988)

Student Contributor: Christopher Henn

PA Underlying real estate transaction

Facts: Storm (the Client) retained Golden (attorney) in connection with the sale of her residence after an agreement was reached with a buyer. From the record, it appears that the client had “irrational trust in [a third party that] was founded in Christian faith and fueled by his representation of faith and Biblical interest” and “she couldn’t think for herself.” At the closing, a check for the proceeds was made to the order of the client and that third party. Thereupon the client endorsed the check to the third party and delivered it to him. He has not been seen or heard from since receiving the nearly $25,000 check. After suing the attorney for alleged malpractice, the trial court dismissed the suit at the end of client’s case for a failure to present expert testimony.

Issue: A question of first impression at the time, the court considered whether expert testimony was required to establish an attorney’s breach of his duty of care.

Ruling: The Superior Court held that;
“As a general rule, our Supreme Court has held that “expert testimony is necessary to establish negligent practice in any profession.” Id. at 375 citing Powell v. Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953);
And that “[b]y its very nature, the specific standard of care attributed to legal practioners necessitates an expert witness' explanation where a jury sits as the fact finder.” Id. at 375-76.
Finally, “[w]hether an attorney failed to exercise a reasonable degree of care and skill related to common professional practice in handling a real estate transaction is a question of fact outside the normal range of the ordinary experience of laypersons.” Id. at 377.

Lesson: This case is the beginning in a long line of decisions in Pennsylvania that recognizes the importance of expert testimony in legal malpractice cases. While the court noted there would be many times in which layperson jurors can decide for themselves, at least in a real-estate transaction such is not the case.

The State Supreme Court denied an appeal. 524 Pa. 630, 574 A.2d 71 (Pa. Nov 03, 1989).

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Primis Corp. v. Milledge, Court of Appeals of Texas, Fourteenth District, Houston, May 27, 2010

Facts:  Defendants agreed to represent the plaintiffs in a certain lawsuit and plaintiffs paid the defendants a $5,000 retainer.  Plaintiffs contend the retainer was a "general retainer", while Defendants contend the retainer was specifically for the work to be performed on the particular lawsuit. 

Several weeks after plaintiffs paid the retainer, they were served with another suit wherein plaintiff sought confirmation of an arbitration award rendered against Primis Corporation.  Plaintiffs delivered the citation to the Milledge law office when no attorneys were present.  Soon thereafter, Samuel Milledge sent plaintiffs a letter noting the deadline to file an answer and requesting a retainer.  Plaintiffs never furnished the retainer and, eventually, a default judgment was entered. 

Primis then filed suit against Milledge asserting claims for negligence, breach of contract, and violations of the Texas Deceptive Practices Act.  The trial court found that Milledge owed Primis a duty to clearly and unambiguously advise Primis that Milledge would not be filing an answer for Primis.  Although the court noted that Milledge failed to give advice when legally obligated to do so and delayed handling a matter entrusted to his care, no damages were assessed against Milledge since Primis did not present expert testimony to establish that Milledge's negligence was the proximate cause of its injuries. 

Issue:  Whether expert testimony was necessary to establish proximate cause? 

Ruling:  Yes.

In a legal malpractice case predicated on professional negligence during litigation, expert testimony generally is required to determine whether the result of the underlying litigation would have been different but for the attorney's alleged negligence.

***

[Here] the trier of fact would have to assess whether, with reasonably prudent counsel, the trial court would have vacated or modified the arbitration award against Primis Corporation...The causation inquiry was beyond the trier of fact's common understanding, therefore, expert testimony was necessary for Primis to prove causation.

Lesson: To prevail in a legal malpractice action, Plaintiff must present expert testimony to establish that "but for" his attorney's negligence he would have prevailed in the underlying litigation. 

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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:

1. Is expert testimony required to show that an attorney has a duty to a client to ensure that a mortgage is recorded correctly?
2. 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.

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Fishman v. Brooks, 396 Mass. 643; 487 N.E.2d 1377 (1986) (PDF)

MA Underlying Personal Injury Action

Student Contributor: Natalie Resto

Facts: Brooks hired Fishman to represent him in an action for personal injuries he sustained when a negligently operated motor vehicle collided with the bicycle Fishman was riding. Fishman did not commence the personal injury suit until 16 months after the accident, and did not obtain service on the driver defendant for more than 10 months after filing the complaint. He also made a settlement demand of $250,000 on the driver’s insurer when the insurance coverage was $1 million. Shortly before trial, after Fishman told Brooks that he could not win if he went to trial, Brooks agreed to settle his personal injury claim for $160,000. The client sued the attorney for malpractice. The jury found for clients and the attorney appealed.
     
Issue: Whether the trial court properly admitted the testimony of an adjuster and tort lawyer as to liability and causation?

Ruling: The court affirmed the lower court’s holding. It found that expert testimony from an experienced tort lawyer and an experienced claims adjuster as to reasonable settlement value of underlying claim was properly admitted, and that

evidence of the fair settlement value of the underlying claim was admissible to prove not only Fishman’s negligence but also that his negligence caused a loss to Brooks. Id. at 648.

Lesson: An attorney is liable when he causes a client to settle a claim for an amount below what a properly represented client would have accepted. The court states that the typical case of malpractice liability for an inadequate settlement involves an attorney who, having failed to prepare his case properly or lacking the ability to handle the case through trial (or both), causes his client to accept an unreasonable settlement.

EDITOR'S NOTE: With our thanks to Westlaw, Thomson Reuters for permitting the case hyperlink.

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Joyce A. Popwell v Law Offices of Broome and Horn, 363 N.J. Super. 404 (App. Div. 2002)

NJ Underlying  Personal Injury action

Student Contributor: Candice Deaner

Facts: After the court appointed arbitrator found that plaintiff had no cause of action for negligence against the underlying defendant plaintiff’s attorney failed to file for a trial de novo within the time limits set out by R. 4:21A-6(b)(1),  A trial de novo filing would have preserved plaintiff’s claim for trial and would not have subjected it to dismissal. Defendants made a cross motion to dismiss, alleging that Plaintiff’s failure to submit an affidavit of merit in the legal malpractice action,  as required by statute, required the  grant  of summary judgment  dismissing the malpractice complaint.

Issue: Does the Plaintiff’s failure to submit an expert's affidavit of merit  to support its allegation of legal malpractice when it was common knowledge that failure to file a timely application for a trial de novo amounts to negligence per se for which no expert affidavit or testimony would be necessary.

Ruling:   The requirement of the filing of an affidavit of merit is not applicable in this matter because Plaintiff's allegations do not require the testimony of an expert in order to permit the jury to determine the issue of negligence.  Affidavits of merit are not required where, as here, it was  “common knowledge” that the defendant attorney was negligent in blowing a time limit the consequences of which included the dismissal with prejudice of plaintiff's causes of action.

Lesson: In clear cases of attorney negligence, where it is common knowledge that the attorney was negligent by violating a statutory time limit  that caused plaintiff to forefeit her claim, no expert's affidavit is required,  because the jury can determine whether the Defendants is negligent based on "common knowledge" and without the need for expert testimony.

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Kaplan v. Skoloff & Wolfe, P.C. 770 A.2d 1258 (N.J.Super.A.D., 2001)
NJ Underlying Divorce Action Settlement

Student Contributor: John Anzalone

Facts: Attorney represented Plaintiff in a divorce proceeding. Plaintiff alleged that because of the attorney negligence in negotiating a property settlement agreement, she received less than she was entitled to when she accepted it. Plaintiff's expert concluded that the settlement was not adequate by comparing what she received to anecdotal evidence as to what he got for one former client recently. As a professional negligence action, an expert opinion on liability was required, But the court found Plaintiff's expert testimony inadmissible because it was based on anecdotal experience of the expert that were unsupported by facts.

Issue: What constitutes an inadmissible expert net opinion?

Ruling: In affirming the dismissal, the Appellate Division held that the expert's opinion on liability was properly excluded, based on the following factors:

1. In New Jersey, expert opinions that are solely conclusions and that fail to provide the basis for the conclusions are considered "net opinions" and are inadmissible as evidence.
2. To get an expert's opinion admitted into evidence, the expert must provide evidence of the accepted practice by lawyers that the defendant failed to adhere to.
3. The expert here failed to provide evidence other than anecdotal evidence regarding a case he handled in the recent past and otherwise only established that he would have done something different in the case, and not what reasonable attorneys' would have done in this case.

...the net opinion rule requires the expert witness 'to give the why and wherefore of his expert opinion, not just a mere conclusion...'

... Plaintiff's expert offered no evidential support establishing the existence of a standard of care, other than standards that were apparently personal to himself.

The Lesson: For the expert's opinion to be admissible in a legal malpractice case, he must define the standard of care and must support its definition by reference to evidence that other experts rely on and which are applicable to lawyers in similar circumstances. The expert's opinion must not be solely based on the expert's own personal view and experience. Once the expert esablishes the applicable standard of care or practice, he must then, through reference to the factual evidence, express the opinon how the defendant lawyer deviated from that standard and how that deviation was the cause of the alleged damage.

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