Expert Witness Legal Malpractice Opinions

Often attorneys in a legal malpractice case forget the full range of opinions for which they can ask a qualified expert witness.

When you are the attorney prosecuting or defending a claim of lawyer negligence, check your state law and see if all or some of the following questions might be asked your expert.

(And certainly there is nothing wrong with asking all of these questions of your own expert during a deposition where the adverse side has taken the deposition of your expert. By putting the adversary attorney on notice of these opinions, you have automatically insured that he/she will tell the his/her client and the settlement value of the case may be adjusted in your favor as a result.

For plaintiffs, the usual lawyer negligence list reads as follows. For defendants, the list would read with the opposite predicates.

  1. In this case, did the defendant attorney meet the standard of conduct of a reasonable attorney in this state? Nationally?
  2. Why (in what way) was the defendant attorney’s conduct below the standard of conduct?
  3. What would an attorney using due care have done in a situation like the one in this case?
  4. Would the adverse result (e.g., statute of limitations missed) have occurred if the defendant attorney had met the standard of conduct?
  5. Are most cases of the type underlying this case settled?
  6. Would the underlying case / transaction had a different [settlement / transaction] negotiation value if the defendant attorney had met the standard of conduct?
  7. Would the underlying case / transaction have been successful if the defendant attorney exercised due care?

This may or may not be the subject of expert testimony, depending on the state jurisdiction and the nature of the underlying matter. But in many states, you need expert testimony on the probably success of the underlying case. See., e.g., Alexander v. Turtur & Associates, Inc., No. 02-1009 (2004) , a Texas legal malpractice case, which illustrates the different views a court may take on the need for this proximate cause testimony to be by an expert. The principal issue in Alexander was whether the jury needed expert testimony to determine whether the client would have prevailed in an underlying trial but for the attorneys’ negligence. The jury found for the plaintiff. The trial court concluded that the jury needed expert testimony to determine causation. There being none, the court disregarded the jury’s findings on causation and rendered judgment for the defendant notwithstanding the verdict. The Texas Court of Civil Appeals (86 S.W.3d 646, 662) concluded that expert testimony was not needed and reversed the trial court’s judgment n.o.v. But, the Texas Supreme Court disagreed that the causal connection was either obvious or a matter within the common understanding of lay persons. Concluding that there was no competent evidence to connect the client’s damages to its attorneys’ negligence, the Texas Supreme Court reversed the Court of Appeals’ judgment and reinstated the trial court judgment that the client take nothing.

Expert testimony in all cases should include the expert’s explanation of key concepts and definitions. Let me take an example. Let us suppose an insurance policy is in dispute or involved. The expert can teach the jury how to read a policy and to understand its terms and interactions. The expert should explain terms like “insuring clause”, “definitions”, “conditions”, “exclusions”, and “endorsements”. This helps the jury understand what it was that the lawyers or insurers were supposed to be doing. The expert insurer can explain things such as how the “right and duty to defend” arise and how the duty is to be exercised. If jurors do not understand the basic terms and concepts involved, they will not be able easily to determine whether someone acted “right or wrong”. I have used an insurance example, but the principal of explaining the basic terms and concepts applies to all cases. For example, the expert and the attorney should not assume that all jurors understand the concept of “conflict of interest”. Laypersons have a variety of understandings of the concept, so what the expert means in discussing a “conflict of interest” must first start with an explanation of the term as the malpractice expert is using it.

It is not just negligence that can be used as a theory in cases claiming an attorney acted wrongfully. Breach of fiduciary duty can be a separate theory. Texas attorneys are probably more aware of this since February 25, 2004, when a jury in Kerr County, Texas, returned a $65.5 million verdict on Feb. 25 against the major law firm of Baker Botts and other defendants. The jury found that Baker Botts breached its fiduciary duty failing to disclose “all important information” when doing estate-planning work for Kathleen C. Cailloux after the death of her husband.

Fraudulent representation can be used as a theory against a lawyer if he/she affirmatively misrepresented to the client what the lawyer was doing. It is the difference between negligent conduct and deceptive conduct. Where fraudulent representation is the theory of recovery, it usually is not necessary to prove that the underlying case or transaction would have been successful. See, e.g., Latham v. Castillo, 272 SW2d 66 (Tex. 1997). The damages awarded under a fraud theory may be either the “out of pocket” measure (the client’s out of pocket expense) or the “benefit of the bargain”, the difference between the value represented and the value received.

And lastly, in some states, a consumer protection statute may be available as a separate claim for relief. If requested, a good expert may be giving opinions regarding the grounds for all these theories.

There is another area where an expert may be used in a legal malpractice case — it involves attorney fees.

Most legal malpractice falls in the following classes of errors:

  1. Administrative Errors: Failure to Calendar, Failure to File, Not Meeting Deadline, Clerical error.
  2. Substantive Errors: Failure to know Deadline, Inadequate Investigation, Failure to Know the Law.
  3. Conflict of Interest.
  4. Client Relations: Failure to Follow Client Instructions, Failure to Obtain Client’s Consent, Improper Withdrawal.
  5. Intentional Wrongdoing

It is not enough to show there was an error. Teaching a judge or jury why the error was made and why the error was important is a major part of an expert’s work.