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CT: Malpractice Claim Fails Without an Expert Witness to Back It Up

Ackerly and Brown, LLP v. Smithies, 109 Conn. App. 584, 952 A.2d 110 (2008)

CT: Underlying residential lease dispute

Student Contributor: Nicholas Kingsbury

Facts: Former attorney advised client to make a settlement offer since the outcome of the trial was uncertain. The trial concluded with a loss and money judgment against the client. Client subsequently refused to pay the former attorney’s $16k legal bill. The former attorney sued for legal fees owed and the client counter-claimed with a legal malpractice claim against the attorney. Because the client failed to produce an expert witness, the attorney filed a motion in limine (a request to the court to decide whether a piece of evidence should be admitted into the trial) to preclude client from producing any evidence to demonstrate that the attorney committed mal practice. The court granted the motion, saying that “this was not a case of an attorney’s failure to meet an obvious standard of care,” and the client ultimately lost. The client then appealed, claiming that the court improperly ruled that the client needed an expert witness.

Issue: Does a client need to present and expert witness when it is not obvious to the lay person that legal malpractice was committed?

Ruling: Yes. In the case at bar, only an expert witness could adequately evaluate the attorney’s subtle tactical decisions during the underlying trial and convey to a judge and jury whether the attorney’s actions constituted a deviation from how a similarly situated lawyer in that jurisdiction should have acted. Without that reliable explanation and evaluation, the client can not assert that the attorney committed malpractice.

Lesson: In a legal malpractice action, a party must provide an expert witness to both explain to the judge and jury the applicable standard of care (how a similarly situated lawyer in that jurisdiction should have acted), and exactly how the attorney’s actions caused injury to the client. An expert witness will only not be required if it is blatantly obvious to the lay person that the attorney committed legal malpractice. This is a hard standard to meet. 

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Posted in: Connecticut