Legal Malpractice Cases: When To Call An Expert Witness


Legal Malpractice Cases: When To Call An Expert Witness

In many legal malpractice cases, experts are used to explain to the jury what the applicable standard of care is so jurors can adequately assess whether there was a breach in the attorney’s duty to the client/plaintiff.

In order to establish legal malpractice, a plaintiff must prove the following elements:

  • An employer/employee relationship between the plaintiff client and the defendant lawyer
  • A duty created by the relationship
  • A breach of the duty during the course of the representation
  • Damages proximately caused by the attorney’s breach of duty

Legal malpractice experts provide two types of information to the jury: First, they describe the standard of care attorneys are expected to comply with in a case that has the same circumstances as those known to the lawyer in the instant case. Second, the legal malpractice expert must explain to the jurors why it is that the actions the attorney took, or, in some cases, the actions the attorney failed to take, didn’t meet the general standard of care.

While a legal malpractice expert is not necessary in every case of malpractice in every state, it is a good idea to have one.

A legal malpractice expert can introduce the fact finder to the relevant standard of care without the risk that their presence on the stand will open them up to questions about other areas of the case. Depending on the case, the standard of care may be defined in a number of different ways, including:

  • By statute
  • In the Jury Instruction Guide (JIGs)
  • The Rules of Professional Responsibility
  • Simply relying on the general standard of negligence

Some common bases for legal malpractice claims include:

Failure to File Critical Pleadings

Attorneys have deadlines for filing suits (referred to as the statute of limitations), filing answers to complaints, failure to file paperwork to be included as a member of a suit, and failure to file an appeal. These failures could result in a bar from pursuing a claim, the filing of a default judgment, an inability to be a member of a class action, or waiver of an appeal of judgment.

Failure to Know or Properly Apply the Law

Attorneys are expected to know the law and, when they take on a case in an area less familiar to them, they are expected to research the law. Attorneys of record are also expected to supervise those working under them to ensure the work product meets the standard.

Failure to Properly Investigate the Situation

attorneys have a duty to understand the case at hand. For example, if they are a real estate attorney and someone hires them to assist in the purchase of a property, the attorney should inquire about the buyer’s intent – will they want to build a mall on the property? Use it for farming? Run a bar? This type of investigation allows the attorney to investigate zoning laws, city ordinances about noise, etc. Similarly, an attorney should not enter a guilty plea on behalf of a client without researching the potential consequences to the client. Discovering the client’s criminal history score, for example, is essential where sentencing guidelines are applied.

Failure to Communicate Critical Information

attorneys have a duty to their client to communicate honestly and completely in a timely manner. For example, attorneys must communicate good faith offers extended by the other side in an attempt to resolve the claim. Attorneys also have an obligation to communicate with their clients by returning phone calls in a timely manner.

Conflicts of Interest

attorneys have an obligation to avoid conflicts of interest. For example, they cannot typically represent criminal co-defendants, because by providing quality representation to one client, they may compromise the case of the other defendant. Similarly, if a lawyer has a financial stake in the company on the other side, or has previously represented an adverse party, they should decline the new case.

Typically, a legal malpractice expert is another lawyer who has practiced in the field. Not anyone with a law degree can provide legal malpractice expert witness testimony. For example, an attorney who practices family law won’t make a good legal malpractice expert in the area of the federal sentencing guidelines and the duty of a federal criminal defense attorney to read the sentencing laws and take into consideration a defendant’s prior criminal history before entering a plea of guilty. However, a tax attorney may be a suitable expert witness to discuss the error of a family law attorney who failed to consider the tax consequences when allocating certain assets.

How an Expert Can Make a Difference

Some attorneys may choose to argue in some cases that the conduct of the attorney defendant was so egregious as to speak for itself. This is permissible in some cases in some jurisdictions. However, this is a risk that probably isn’t worth the gamble.

An expert in legal malpractice can provide the jury with the clearest possible guidance in the area of the standard of care. An expert can also assist in the creation of exhibits, where appropriate. Experts can also assist counsel by listening to the defense provided and helping craft cross examination questions. An attorney who litigates legal malpractice cases cannot possibly be an expert in every other area of the practice of law. An expert in the area of law at issue, a legal malpractice attorney’s insights and experience can be invaluable.

About The Author

Christine Funk, J.D., is a dual-qualified criminal defense attorney and forensic science consultant who has trained lawyers, judges, and law enforcement across three continents in various forensic science disciplines.