Legal malpractice expert witness for defense opines on claim that lawyers violated standard of care

Legal Malpractice Expert WitnessIn the underlying case, the legal malpractice plaintiffs were sued by neighbors alleging ejectment and trespass. The plaintiffs counterclaimed arguing the neighbor sprayed 2,4-D near their garden and as a result the wife developed non-Hodgkins, T-cell lymphoma. The medical diagnosis had been determined after a costly process which narrowed down the cause from B-cell lymphoma or other mutations, and the plaintiffs attested to how they believed their neighbors should pay the medical fees. The law firm representing the counterclaimants (now plaintiffs) decided to withdraw from the case after the court dismissed all of the counterclaims. A jury in this underlying case found in favor of the neighbors on all remaining counts. The plaintiffs then filed a breach of contract and legal malpractice case against their attorneys.

The plaintiffs claimed the law firm failed to fully investigate the facts of the case, failed to timely respond to the neighbors’ motion for summary judgment, failed to keep them informed of the status of the case or the strengths and weaknesses of the case and withdrew without good cause or giving them an opportunity to be heard.

This malpractice case went to trial and the jury found the law firm negligent but the negligence caused no damages to plaintiffs.

Question(s) For Expert Witness

  • Did the defendant law firm violate professional standards in withdrawing from the case?

Expert Witness Response

The attorney’s failure to continue asserting the toxic tort counterclaim did not fall below the standards reasonably expected to be practiced by an attorney. The statute of limitations defense would have been raised to defeat the claim if the plaintiffs brought the claim more than two years after the date they had reason to believe they were injured by the neighbor’s acts. The existence of a meritorious statute of limitations claim would substantially reduce the value of the claim. It could be effectively argued that the plaintiffs were well aware that their injuries were serious – they moved from the property.

Likewise, failure to seek dismissal without prejudice before the summary judgment motion was argued did not fall below accepted standards. The attorney agreed to represent the plaintiffs on an hourly basis to assist them as they performed all of the leg work in providing witnesses and obtaining medical evidence to support their claims. The plaintiffs failed to provide the professional witnesses and, thus, the attorney was not able to advise the court that a qualified expert had been retained. The attorney’s relationship with the plaintiffs had deteriorated to the point that he could not adequately communicate, advise, or direct them in any way. The attorney had an obligation to withdraw to allow the clients to hire an attorney they can communicate with and trust.

The expert has been an attorney for more than 40 years and focuses on personal injury and professional negligence.


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