Why Do We Need To Hire An Expert In My Legal Malpractice Case?
We are often asked, “why do we need to pay an expert, isn’t my case clear?” Sometimes our clients are correct, their case is so clear, and their damages are so straightforward, that there is no need for an expert. However, when representing a client in a legal malpractice case, we generally need an expert. And we better start planning for the expert NOW because the malpractice insurance company, and the legal malpractice defense attorney has a planned expert…and will pay top dollar for one every time.
Legal Malpractice Law Overview
All Massachusetts attorneys owe their clients a duty to exercise a reasonable degree of care and skill in representing his or her client. See Clark v. Rowe, 428 Mass. 339, 341, 701 N.E.2d 624, 626 (1998); Pongonis v. Saab, 396 Mass. 1005, 1005, 1006, 486 N.E.2d 28, 29, (1985), citing Glidden v. Terranova, 12 Mass. App.Ct. 597, 598, 427 N.E. 2d 1169, 1170 (1981).
Thus, to win a legal malpractice case, we must prove: first, the existence of an attorney-client relationship, second, a violation of the aforementioned duty to exercise reasonable care by the former attorney, and third, as a result, caused or in legal terminology was the proximate cause of; fourth, a monetary loss, called legal damages. Thus, you must prove that you would have won the underlying case. See Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, 25 Mass.App.Ct. 107, 111, 515 N.E. 2d 891, 894 (1987).
What is the Law on Having An Expert at a Legal Malpractice Trial?
“[E]xpert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case.” Pongonis v. Saab, 396 Mass. at 1005, 486 N.E.2d at 29. Furthermore, the victim is “obliged to present expert testimony to establish the standard of care owed by an attorney in the particular circumstances and the defendants’ [attorney] alleged departure from it.” DiPiero v. Goodman, 14 Mass.App.Ct. at 929-930, 436 N.E.2d at 999.
The expert witness, an attorney who can be Court certified to testify as someone with sufficient experience to explain the standard of care in the particular area of law that the negligent attorney practiced in, needs to be able to testify that the defendant’s attorney’s conduct fell below that expected in the legal community.
What Does the Attorney Expert Need to Testify To?
First, was there liability? And did the lawyer expert testify that the defendant’s lawyer failed to meet the duty of care in the underlying case. See DiPiero v. Goodman, 14 Mass.App.Ct. at 930, 436 N.E.2d at 999-1000. See also Brown v. Gerstein, 17 Mass.App. at 565-567, 460 N.E.2d at 1050. See also Partin v. Fischer, 1997 WL 124104 (Suffolk Super. Ct., March 4, 1997).
Second, did the defendant’s attorney’s malpractice cause the loss to the victim of malpractice? While this is generally a question to the jury, the plaintiff must be sure to make the link between the negligence of the defendant’s attorney and the resulting damage to him or her. Note that the testimony must be both that there was negligence AND that the negligence resulted in actual damage to the victim. See Siano v. Martinelli, 12 Mass.App.Ct. at 947, 427 N.E.2d at 490.
Third, did the defendant’s attorney’s malpractice lead to actual, quantifiable, measurable economic damages? Note, pain and suffering from legal malpractice is NOT generally damages in a legal malpractice case. Thus, when trying the underlying case as to damages, an expert can testify as to THOSE damages. Note further, this is not necessarily a lawyer, or legal expert. It could be a physician regarding an injury, an economist regarding an economic lost, or a business expert regarding loss in a business transaction. See Fall River Sav. Bank v. Callahan, 18 Mass.App.Ct. 76, 82, 463 N.E.2d 555, 560, further rev. denied, 392 Mass. 1103, 465 N.E.2d 262 (1984).
Also, if there was an offer of settlement in the underlying case, but the defendant’s attorney did not convey the offer, or did not recommend the offer properly, evidence of that offer could possibly avoid trying the underlying case; however, you still need to prove that the attorney was negligent by his or her actions in failing to explain or convey the offer. See Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986).
If there is no testimony as to damages, the case may fail! See, Girardi, 38 Mass.App.Ct. at 558, 560 649 N.E.2d at 808-809 and Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass.App.Ct. 509, 519-520, 633 N.E.2d 424, 430 (1994).
Note that some cases are not derivative of an underlying case and an expert testimony must be reflective of this unusual situation.
Fourth, many cases involve ethical violations, violations of the Massachusetts Code of Professional Ethics. Do we need an ethics expert? No, most attorneys can testify as to the Code. Is evidence of an ethical violation proof of liability? No. But it provides a starting point for your expert to explain what the violation was and why is had an effect on the breach of duty. See Fishman, 396 Mass. at 649, 487 N.E.2d at 1381-1382. The law is somewhat nuanced here as to how an ethical violation would result in an expert’s opinion. See GTE Government Systems Corp. v. Rackman, Sawyer & Brewster, 1993 WL 818682 (Mass. Super. Ct., February 1, 1993).
However, in conflict of interest cases, where an attorney owes a duty to both sides, or appears to, a recitation of the Rules is allowed to explain this legal principal so long as the conflict resulted in the damages according to the expert. See, Harris v. Magri, 39 Mass.App.Ct. 349, 351, n. 4, 656 N.E.2d 585, 586 (1995); GTE Government Systems Corp. v. Rackman, Sawyer & Brewster, 1993 WL 818682 (Mass.Super.Ct. December 6, 1993).
Fifth, can your expert testify as to what a Court would have done regarding the law? Sure. The attorney expert can explain what the law is, and how a proper jury instruction would have been given and how that process worked. The Court will provide the jury with an instruction as to the law. See Romano, 26 Mass.App.Ct. at 170 n. 18, 524 N.E.2d at 1386 citing to Stafford v. Garrett, 46 Or. App. 781, 613 p.2 99 (1980) See Cianbro Corp. v. Jeffcoat & Martin, 804 F.Supp. 784, 791 (D.S.C. 1992). Many clients ask us to call the judge in the underlying case to testify as to what he or she would have done had their attorney not been negligent. We do not do that; and the law does not promote this. See Glenn, 409 Mass. at 703-704, 569 N.E.2d at 786.
Sixth, what about jury waived trials? Do we really need an expert since the judge is an attorney? Yes. Generally, we need to present evidence that the judge can weigh. Sometimes we can get the other side to stipulate to facts such as a blown statute of limitations, which a judge will, of course, not need extensive expert testimony about. However, we would still recommend an expert, as there many other aspects to a case. Further, judges are not experts in every area of law. Nevertheless, some judges will agree to read opinions that are on point to alleviate the need for testimony about settled law. See Callahan, 18 Mass.App.Ct. at 83, 463 N.E.2d at 555.
When Is Expert Legal Testimony Not Necessary?
There are times, when the legal malpractice is so clearly obvious that expert legal testimony is not necessary at all. That is, if the malpractice is “gross or obvious” and expert may not be required. See Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987). at 219. See also Stewart Title Guar. Co., Inc. v. Jones, 1997 WL 879490 (Mass. Super. Ct., July 13,1994); Republic Oil Corp. v. Danziger, 9 Mass.App.Ct. 858, 859, 400 N.E.2d 1315, 1317 (1980).
There is also a carved-out exception for not having an expert in the case when the plaintiff (victim) was the defendant in the prior case. See Glidden, 12 Mass.App.Ct. at 599-601, 427 N.E.2d at 1171-1172.
Be warned that in most cases that have been reviewed by the appellate courts, a victim has lost his or her case because they failed to have an expert.
Note that the defendant in a legal malpractice trial does not have to hire an expert. First of all, the burden of proof is on the plaintiff. Second, it is axiomatic that the defense can call the defendant himself to testify, as he or she is a lawyer and has some, or considerable, expertise.
Finally, note that when both parties have expert attorneys, the jury will weigh the credibility of the experts. See J. Edmund & Co. v. Rosen, 412 Mass. 572, 576, 591 N.E.2d 179, 181 (1992); Romano v. Weiss, 26 Mass.App.Ct. 162, 169, 524 N.E.2d 1381, 1385 (1988).
Contact Attorneys Burns & Jain for a Free Legal Malpractice Consultation
We have been representing victims of legal malpractice since 1986. We have helped hundreds of clients whose first attorney failed to meet the standard of care required in Massachusetts and as a result, lost their case, lost their money, or received significantly less than they deserved. We hire expert witnesses who are effective in getting results for our clients. Call for a free consultation: 617-227-7423