CT: Underlying criminal defense matter
Facts: Client sued his former attorney claiming negligence and breach of contract in his representation of the client in his criminal trial for attempted murder. The client alleged that the attorney failed to raise the issue of: double jeopardy, fair notice of the charging documents, instructional error, subject matter jurisdiction, and inconsistent verdicts on appeal. The client also claimed that the “defendant attempted to procedurally default and waive the plaintiff’s constitutional rights on appeal; that the defendant failed to notice that a portion of the transcript provided to the Appellate Court was missing; that the defendant failed to brief every separate act of alleged prosecutorial misconduct.”
The attorney filed a motion compelling the former client to produce an expert witness to substantiate his legal malpractice claims. The client failed to produce an expert and the attorney moved to dismiss the case, claiming that a legal malpractice claim cannot be brought without expert testimony. The trial court agreed with the attorney, informing the client that the exemption to the rule did not apply in this case; the exemption being that an expert witness is not required if the malpractice in question is so obviously a departure from normal attorney practice as to be evident to the lay person. The trial court, therefore, ruled in favor of the attorney.
Issue: Were the client’s claims of lawyer malpractice so obviously a departure from normal attorney practice as to be evidence to the lay person, thereby, not requiring expert testimony?
"The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the [attorney’s] actions in light of that standard."
The numerous malpractice claims asserted by the client here were not a failure of the attorney to follow basic procedural rules. The gravity of the attorney’s mistakes asserted by the client are not readily evident as being a serious departure from the standard of care. Therefore, the client would have needed an expert witness to explain to the judge and jury exactly why these mistakes constitute legitimate lawyer malpractice.
Lesson: As a general rule, a plaintiff asserting a legal malpractice claim must provide an expert witness to substantiate his claims. There is an exception to this rule waiving the requirement for expert testimony if the former attorney’s actions were such a gross deviation from the standard of care as to be obvious to the lay person. However, this is a risky card to play. If it turns out that the attorney’s mistakes are either debatable or too complex for the lay person to readily grasp, the plaintiff cannot prove his claim without an expert witness. To be safe, always provide an expert witness when bringing a legal malpractice claim.