CT: Disclosure of Experts: Don't Wait till its too Late!

Posted on January 4, 2011 by Ben Wasserman

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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IL: Statute of Limitations: Cause of Acton Accrues on Discovery

Posted on July 15, 2010 by Ben Wasserman

Kohler v. Hawkins, 15 Ill.App.3d 455, 304 N.E.2d 677(App. Ct. 1973)

IL. underlying tort action

Student contributor: Cheryl Neuman

Facts: Two men were killed a car accident. Their estates hired defendant attorney in an action against the driver of the car in which the two men were killed. The defendants filed demands for arbitration and the arbitration hearings were held and damages were awarded. The award was subsequently vacated because the demand for arbitration was not filed within two years of the death of the decedents as required by the Injuries Act (Ill.Rev.Stat. 1965, ch. 70, pars. 1 and 2.). After the denial of a petition for leave to appeal, the defendants told the administrators of the estates that there would not be any recovery. The administrators then filed a complaint against the defendants alleging that the defendants were negligent and carelessly filed the demand for arbitration after the two year statutory allowance, thereby causing the administrators and heirs of the decedents the lost value of the arbitrator’s award. The defendants contend, however, that the statute of limitations has run and the plaintiffs can no longer sue them for a legal malpractice action.

Issue: Whether the statute of limitations for legal malpractice commences at the time of the negligent act or when the client discovers or should discover the facts establishing the elements of his cause of action?

Ruling: The cause of action for legal malpractice does not accrue until the client discovers or should have discovered the facts establishing the elements of his cause of action. Therefore, the complaint for legal malpractice was timely filed in this case. The statute of limitations did not begin to run until the administrators of the estates were advised by the defendant that they wouldn’t be able to recover in the underlying suit. Complaints filed within 5 years from that date were considered proper and timely filed.

Lesson: It is unrealistic and unfair to bar a negligently injured party’s cause of action before he had an opportunity to discover that it exists. The court reasoned that a client may not realize the negligence of an attorney when it occurs and to require a professional to check the work of the attorney would be impractical and would destroy the confidential relationship between attorney and client.
 

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