P R O F E S S I O N A L L I A B I L I T YWhen Is It Needed?By Jeffrey M. JamesExpert Testimony inLegal MalpracticeCasesWith increasingfrequency, plaintiffsare attempting tobypass the proceduralhurdle requiringexpert testimony byasking the court toapply the “commonsense exception.”At some point in every legal malpractice case, a defenseattorney expects to receive a disclosure of the plaintiff’sexpert witnesses and the witnesses’ opinions. Often, this isthe stage of the litigation when the issues are clearly out-lined, and the defense is told exactly “whatwent wrong.”But what happens when a plaintiff’s attorneydoes not disclose a liability expert? Aslawyers, we tend to think that a jury, usuallyconsisting of laypersons, cannot determinethe standard of care that an attorneyshould have followed when the alleged malpracticeoccurred. Does a plaintiff’s attorneyabsolutely have to present expert witness testimonyat trial to get the case to the jury?Oddly enough, sometimes the answer is no.This article will examine the currentstate of the law and answer the followingquestion: Under which circumstances isexpert testimony optional in a legal malpracticelawsuit, rather than mandatory?<strong>The</strong> answer to this question is important inanalyzing a case’s susceptibility to a summaryjudgment or a directed verdict at trial.• An employment relationship existedbetween the plaintiff as a client and thedefendant as his or her attorney;• This relationship created a duty, and theattorney breached that duty when representingthe client;• <strong>The</strong> client suffered damages that wereproximately caused by the attorney’sbreach of the duty.Larson & Larson, P.A. v. TSE Industries,Inc., 22 So. 3d 36, 39 (Fla. Dist. Ct. App.2009).<strong>The</strong> first element of a malpracticeclaim—the employment relationship—generally is not established by expert testimony.Rather, it is usually established bythe existence of a retainer agreement or, atleast, the plaintiff’s testimony that he or shebelieved that the defendant was representinghim or her.<strong>The</strong> Elements of Legal MalpracticeGenerally, at a trial, a plaintiff must provethe following elements to establish a claimfor legal malpractice:<strong>The</strong> Use of Expert TestimonyA plaintiff generally employs an expertwitness to address the second element ofa malpractice claim—an attorney’s breach74 n <strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong>■ Jeffrey M. James is a shareholder with the law firm of Banker Lopez Gassler P.A. in Tampa, Florida. His practice focuses onproducts liability, professional malpractice, and other litigation. Mr. James is admitted to practice in all state and federal courts inFlorida. He is AV-rated with Martindale- Hubbell and was included as a Rising Star in 2009 by Florida Super Lawyers magazine.Mr. James is a member of <strong>DRI</strong> and its Professional Liability Committee.
of a duty, which is normally defined asthe applicable standard of care. This actuallyentails a two-step process. First, anexpert witness must describe the standardof care for practitioners under the samecircumstances as a defendant’s. Next, aplaintiff’s expert must explain to the factfinderwhy the attorney’s actions failed tomeet the standard of care. Teltschik v. Williams& Jensen, PLLC, F. Supp. 2d, <strong>2010</strong>WL 481312, at *13 (D.D.C. <strong>2010</strong>) (holdingthat “expert testimony most often is necessaryto establish the applicable standardof care and breach thereof in legal malpracticeclaims”); Pereira v. Thompson,217 P.3d 236, 247 (Or. Ct. App. 2009) (“Toprove that breach, a jury often requiresexpert evidence setting forth the appropriatestandard of care owed by a reasonableattorney and how the defendant failed touphold that standard”).What Is the Standard of Care?Since the expert first explains the standardof care to a jury before establishing howhe or she breached it, identifying thatstandard of care is important in each particularcase. Sometimes a statute prescribesthe standard of care, clearly explaining thestandard an expert must consider in determiningwhether an attorney breached it.In Alabama, for example, the legislaturehas specified that a plaintiff suing a legalservice provider has the burden of provingthat the provider breached the applicablestandard of care in Ala. Code §6-5-580.Subsection (1) of the statute even definesthe standard of care as “such reasonablecare and skill and diligence as other similarlysituated legal service providers in thesame general line of practice in the samegeneral area ordinarily have and exercisein a like case.” Subsection (2) elaboratesfurther, stating that if an attorney publishesthe fact that he or she is certifiedas a specialist in a particular area of law,the applicable standard of care in a claimfor damages resulting from the practice ofthat specialty is the reasonable care, skilland diligence displayed by other attorneyswith the same specialty. This suggests thatan expert employed by a plaintiff to renderan opinion that a defendant breached theapplicable standard of care in representingthe plaintiff would practice in the samespecialty or area of law as the defendant.Some states without statutes outliningthe standard of care in legal malpracticeclaims nevertheless provide guidancethrough specialized jury instructions. Connecticutcivil courts employ a very detailedinstruction laying out the three elementsof a malpractice claim. Conn. Civ. JuryInstruction 3.8-5. <strong>The</strong> instruction providesan excellent explanation of the issuesthat a jury must determine in laymen’sterms. It also specifically explains the purposeof expert testimony:Malpractice is really professional negligence.Because jurors are probably unfamiliarwith legal procedures, methods,and strategies, you obviously cannot beexpected to know the demands of properlegal representation. It is for this reasonthat expert testimony is required todefine the standard of care or the dutyowing from the lawyer to his client,whether that duty has been breached,and whether that breach of duty causedthe damages the plaintiff claims, so thatyou can reasonably and logically concludewhat the proper standard of professionalcare was, whether or not it wasviolated, and whether that violation wasa legal cause of harm to the plaintiff.Though the instruction informs the jurythat the purpose of expert testimony is toestablish the standard of care owed by alawyer to his or her client, the instructionalso defines the applicable standard of care:“<strong>The</strong> test in this case for determining whatconstitutes sufficient knowledge, skill, anddiligence on the part of the defendant isthat which attorneys ordinarily have andexercise in similar cases. That means thatthe law does not expect from an attorneythe utmost care and skill obtainable orknown to the profession.”Certainly, Connecticut’s jury instructionis one of the most detailed and descriptiveinstructions on legal malpractice. Moreoften, pattern legal malpractice instructionstend to restate a court’s definition ofthe standard of care, as in Alaska, or simplyrepeat the standard definition of negligence,as in Florida. Compare AlaskaCivil Pattern Jury Instruction 8.10(“An attorney is negligent in the representationof a client if the attorney failsto use the skill prudence and diligencethat other attorneys commonly possessand would exercise under similar circumstances.”)with Florida Standard (Civil)Jury Instruction 402.5 (“Negligence isthe failure to use reasonable care. Reasonablecare on the part of [an attorney] is thecare that a reasonably careful [attorney]would use under like circumstances. Negligenceis doing something that a reasonablycareful [attorney] would not do under likecircumstances or failing to do somethingthat a reasonably careful [attorney] woulddo under like circumstances”).On the other end of the spectrum,many states do not have either a statuteor jury instruction outlining the applicablestandard of care. Courts in these statesgenerally will exercise discretion in decidingthe type of expert testimony to allowin a trial, and if it is required. Most likelya trial court will use the standard definitionof negligence in an instruction for ajury, unless an attorney requests a specialinstruction based on the testimony in evidence,and the court grants that request.When Is Expert TestimonyUnnecessary?What happens, though, when a plaintiffseeks to proceed to trial without intendingto offer expert testimony regarding thestandard of care and the defendant’s breachof that standard? Interestingly enough, experttestimony is not always necessary to establishthat an attorney breached a standardof care. At first blush, this seems counterintuitive.How will a jury, consisting of laypersons,identify the appropriate standard ofcare for an attorney in a particular situation?<strong>The</strong> Common Sense ExceptionCourts in jurisdictions across the countryhave held that if an attorney’s breachis so clear that even a layperson can determinethat it fails to meet the appropriatestandard of care, a court may permita plaintiff to proceed to trial without presentingexpert testimony to establish therequisite standard of care or that an attorneybreached the standard. This is oftencalled the “common sense exception,”though different jurisdictions use differentterms to describe it. See, e.g., Keeneyv. Osborne, S.W.3d, <strong>2010</strong> WL 743671, *4(Ky. Ct. App. Mar. 5, <strong>2010</strong>) (“sufficientlyapparent”); Davis v. Enget, 779 N.W.2d 126,129 (N.D. <strong>2010</strong>) (“egregious and obvious”);Byrne v. Grasso, 985 A.2d 1064, 1067 (Conn.<strong>For</strong> <strong>The</strong> <strong>Defense</strong> n <strong>July</strong> <strong>2010</strong> n 75
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