Legal Malpractice

Are Experts Necessary in Legal Malpractice

By (Andrew Lavoott Bluestone)

It's the very rare case in which an expert is not needed in a legal malpractice case.  Here is a SDNY case in which the expert was necessary.  How could this attorney not have used an expert on a motion for summary judgment?

YAMIRA SANTIELI, Plaintiff, v. LAWRENCE M. LAPINE, Defendant.
3:05cv1712(WWE)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
2008 U.S. Dist. LEXIS 28251
March 26, 2008, Decided

"To recover on a claim of legal malpractice, plaintiff must establish (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Plaintiff must produce expert testimony that a breach of the professional standard of care has occurred, and that the breach was a proximate cause of the injuries suffered by the plaintiff. Dixon v. Bromson and Reiner, 95 Conn.App. 294, 297-98, 898 A.2d 193 (2006); Solomon v. Levett, 30 Conn.App. 125, 128, 618 A.2d 1389 (1993). In malpractice cases, expert testimony serves to assist lay people, such as members of the jury and [*4] the presiding judge, to understand the applicable standard of care and to evaluate the defendant's action in light of that standard. Vona v. Lerner, 72 Conn.App. 179, 187, 804 A.2d 1018 (2002).

Plaintiff makes no representation that she intends to disclose an expert witness and she has filed no motion to do so. Rather, she argues that this case falls within the exception to the expert witness requirement where there is "such an obvious and gross want of care or skill that the neglect is clear even to a layperson." Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990).

An expert may not be necessary when the legal malpractice involved a failure to follow rules of procedure, such as filing motions or attending hearings. See Dubreuil v. Witt, 80 Conn.App. 410, 422, 835 A.2d 477 (2003). However, the instant case does not involve an obvious and gross want of care that would be clear to a lay person. Here, assessment of whether defendant breached the standard of care requires expert testimony as to the division of marital assets and the advice provided by defendant. Accordingly, summary judgment is appropriate."

Full post as published by New York Attorney Malpractice Blog on April 25, 2008 (boomark / email).