For The Defense, July 2010 - DRI Today

he did not have the authority to settle forthe amount requested. On the followingday, the defendant advised Avery that hehad received authority to settle. Despite theclient’s willingness to settle, the defendantrefused to do so because he thought hecould “beat the case.” Id. at 444. The juryreturned a verdict for Joos in the amountof $65,000, exclusive of interest and costs.Avery and Joos, who had been assigneda portion of Avery’s claim, sued the defendantfor legal malpractice. The trialcourt dismissed the claim for failure tointroduce expert testimony that the defendanthad breach the standard of care bynot communicating the pretrial settlementoffers and failing to settle the case when hehad authority to do so. The appellate courtreversed, holding that “an attorney has, asa matter of law, a duty to disclose and discusswith his or her client good faith offersto settle.” Id. at 445. In addition, the courtfound that it was within the knowledge ofa layperson “to recognize” that “the failureof an attorney to disclose such informationis a breach of the applicable standardof care.” Id.In Joos, again, the facts demonstrate thecoexistence of two situations in a singlecase in which courts apply the “commonsense” exception: failure to communicateand failure to follow instructions. Theattorney also probably exacerbated hisproblem by intentionally failing to communicateand following instructions to settle,explaining that he could win if the caseif he made it to the jury.Failure to Follow InstructionsFinally, courts usually do not requireexpert testimony if an attorney failed tofollow the express instructions of a client tothe client’s detriment. For example, in Joos,the attorney failed to settle a claim after hisclient told him to do so. Another case illustratingthis situation was Jarnagin v. Terry,807 S.W.2d 190 (Mo. App. 1991). In Jarnagin,the defendant represented a client in adivorce proceeding. The evidence at trialshowed that the client had instructed theattorney to include as a term of the divisionof the marital property, and to securethe judgment of the court, that the client’shusband solely undertake a particular maritaldebt. The evidence also proved that theattorney had agreed to this instruction andyet failed to follow it, leading to the damagesincurred by the client. The trial court,however, directed a verdict for the attorneybased on a lack of expert testimony.The appellate court approached the issuein an interesting way. Instead of analyzingit through the lens of the common senseexception, the court focused on the attorney’sduty as an agent of the client to findthat the breach was contractual rather thanbased in tort. Id. at 194. The court stated,“The ground of the action is not that theclient was damaged by the lack of legalexpertise of the lawyer, but that the lawyerdid not follow the direction of the client,so that expert testimony is not neededto prove that the agent committed a breachof duty to the principal.” Id. Other courtshave also made this distinction while stillapplying the common sense exception. SeeAsphalt Engineers, Inc. v. Galusha, 770 P.2d1180, 1181–82 (Ariz. App. 1989); Olfe v. Gordon,286 N.W.2d 573, 577–78 (Wis. 1980).As these cases illustrate, very often if acourt holds that expert testimony is unnecessaryto establish a breach of the applicablestandard of care, the defendant has,through multiple acts, damaged the client’srights. While simply failing to file,failing to communicate or failing to followa client’s instructions may each alonesufficiently prompt a court to apply thecommon sense exception, an attorneydefending a malpractice claim involvingmore than one of these negligent acts mustcertainly prepare for a former client suingan attorney to make this argument at thesummary judgment stage or at trial.Unique Rulings Relating to theNeed for Expert TestimonySometimes when a court rules on whethera plaintiff needs expert testimony to establishthe standard of care or establish abreach of a duty, it leads to a unique ruling.For instance, in one recent federal courtopinion in California, the court outlinedfor the parties the conduct that would fallbelow the standard of care in that particularcase. In Ito v. Brighton/Shaw, Inc., 2009WL 2960836 (E.D. Cal. Sept. 11, 2009), thecourt, on a motion for reconsideration, reiteratedits previous ruling that the plaintiffcould proceed to trial against the defendantwithout expert testimony if he could establishone of three “foundational facts.” Id. at*2. Though this opinion appears to be anoutlier, it could help you to secure a compromiseon the common sense exceptionif it seems likely that a former client willinvoke the exception.In Yates v. Brown, 2010 WL 58924 (OhioCt. App. Jan. 11, 2010), the court suggestedthat expert testimony was necessary inthis legal malpractice claim to determinecausation and apportion fault because itinvolved multiple attorneys. The former clientsasserted that the actions of an attorneyother than the defendant may have causedsome of the damages attributed to the defendant.In responding to the defendant’smotion for summary judgment, the formerclients did not limit their argumentsto the actions of the defendant. The appellatecourt upheld summary judgmentfor the defendant, stating, “When multipleattorneys were involved in the underlyingrepresentation, and when the plaintiffshave alleged negligent representation bymore than one attorney, the trial courtdid not err by concluding that expert testimonywas necessary to establish a primafacie case of legal malpractice in regard toan individual attorney. In fact, expert testimonywould be critical under these circumstancesto determining causation andeither parsing or eliminating liability.” Id.at *5. This language suggests that if the formerclients had directed accusations solelyagainst the defendant, expert testimonymay not have been required.ConclusionIn most legal malpractice cases across thecountry, a court—either by statute or byprecedent—will require a plaintiff to offeran expert witness to testify to establish thestandard of care applicable to the defendantand whether the defendant breached it. Withincreasing frequency, however, plaintiffshave bypassed this procedural hurdle byarguing to a court that the standard of careand the breach were so obvious that even alayperson can comprehend them withoutthe benefit of expert testimony. In those situations,a defense attorney must know thetype of conduct to which courts will applythe common sense exception. Identifyingthis conduct will allow you to have an argumentready to combat the exception when aplaintiff’s attorney invokes it. Clearly, thatis a matter of common sense.For The Defense n July 2010 n 77