Legal Malpractice Law Review

Legal Malpractice Law Review

Research, resources & expertise in the law governing lawyers

Category Archives: Expert Witnesses

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KY: Judge As a Witness Is Permitted

Posted in Expert Witnesses
Payton v. Clay, 2005-CA-000573-MR, 2007 WL 79711 (Ky. Ct. App. Jan. 12, 2007) (Unpublished opinion available on Westlaw.  KY: Underlying Business Law Student Contributor: Louis Dell Facts: Payton was involved in the business of preparing tax forms. He was sued by Holland to enforce a franchise agreement and a non-compete agreement. Payton hired Clay to… Continue Reading

CT: Lack of Expert Testimony Kills A Legal Malpractice Claim Couched As a Breach of Fiduciary Duty Claim

Posted in Connecticut, Expert Witnesses, Fiduciary Duty, Wills Trusts & Estates
Marciano v. Kraner, 126 Conn. App. 171, appeal denied, 300 Conn. 922 (2011) CT:  Underlying Wills, Trusts, and Estates Disputes Student Contributor: Jennifer Hanley Facts: Client’s parents were older and experiencing serious health difficulties. Concerned with preserving their property and assets, he contacted an attorney to provide advice on the matter. The attorney (“Attorney”) advised… Continue Reading

NJ: Affidavit of Merit? Better Safe then Sorry.

Posted in Expert Witnesses, Family Law, New Jersey, Standard of Care
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.… Continue Reading

NJ: The Latest on the Net Opinion Rule

Posted in Commercial, Expert Witnesses, New Jersey
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 Jan. 12, 2012 UNPUBLISHED) NJ: Underlying Commercial Action Student Contributor: Jennifer Hanley Facts: In this legal malpractice case, plaintiffs appeal from the order summarily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… Continue Reading

NJ: Legal Malpractice Expert Shielded by Absolute Litigation Privilege

Posted in Expert Witnesses, New Jersey, Privity, Torts/Personal Injury
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 March 9, 2011 UNPUBLISHED) NJ: Underlying legal malpractice action FACTS:  Attorney Blum was sued by a former client   in an underlying legal malpractice action,   which was dismissed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… Continue Reading

WA: The Expert Must Be Heard!

Posted in Case Within a Case, Expert Witnesses, Family Law, Litigation, Washington
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… Continue Reading

WI: Expert Testimony Needed to Prove a Breach of Duty of Care

Posted in Criminal Law, Expert Witnesses, Wisconsin
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… Continue Reading

IL: Net Opinion on Causation Results in Dismissal

Posted in But for-Proximate Cause, Expert Witnesses, Illinois, Proximate Cause
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… Continue Reading

NY: Selection of Expert Protected by Professional Judgment Defense

Posted in Defenses, Expert Witnesses, New York
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… Continue Reading

NJ: Personal Opinion is a Net Opinion

Posted in Expert Witnesses, New Jersey
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… Continue Reading

GA: Active Practice of Law is a Prerequisite for Expert Witnesses

Posted in Expert Witnesses, Georgia
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… Continue Reading

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

Posted in Expert Witnesses, Real Estate
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… Continue Reading

TX: Years of Legal Practice and Judicial Experience Does Not an Expert Make

Posted in Expert Witnesses, Litigation, Texas
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… Continue Reading

AR: The Critical Role of the Expert Witness

Posted in Arkansas, Expert Witnesses
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… Continue Reading

7th Cir: A Claim, By Any Other Name…

Posted in Commercial, Conflicts of Interest, Corporate Law, Expert Witnesses, Federal, Fiduciary Duty, Legal Ethics, Litigation
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… Continue Reading

AL: “Blatant Error” Excused in Absence of Causation and Damages

Posted in Affidavit/Certificate of Merit, Alabama, But for-Proximate Cause, Case Within a Case, Damages, Duties: Communicate, Expert Witnesses, Substantial Factor-Proximate Cause
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… Continue Reading

ME: Effect of Factual Determinations by Fee Arb Panel

Posted in Attorneys Fees, Expert Witnesses, Maine
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… Continue Reading

TX: Lawyer and Non-Lawyer Experts in Legal Mal Litigiation

Posted in Expert Witnesses, Litigation, Texas
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… Continue Reading

TX: The Need for Expert Testimony

Posted in Expert Witnesses, Texas
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… Continue Reading

NJ: Expert Testimony on Settlement Value

Posted in Expert Witnesses, Litigation, New Jersey, Statute of Limitations, Torts/Personal Injury
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… Continue Reading

NJ: Expert Opinion Necessary to Dispute Reasonableness of Attorney’s Fees

Posted in Attorneys Fees, Expert Witnesses, New Jersey
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… Continue Reading

NY: The Essential Defense Expert

Posted in Expert Witnesses, New York, Wills Trusts & Estates
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… Continue Reading

PA: The Need for Legal Malpractice Expert–the First Word

Posted in Expert Witnesses, Pennsylvania
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… Continue Reading

TX: Expert Testimony Necessary to Establish Proximate Cause

Posted in But for-Proximate Cause, Commercial, Expert Witnesses, Proximate Cause, Texas
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… Continue Reading