Payton v. Clay, 2005-CA-000573-MR, 2007 WL 79711 (Ky. Ct. App. Jan. 12, 2007) (Unpublished opinion available on Westlaw.
KY: Underlying Business Law
Student Contributor: Louis Dell
Facts: Payton was involved in the business of preparing tax forms. He was sued by Holland to enforce a franchise agreement and a non-compete agreement. Payton hired Clay to represent him as his attorney. Holland was awarded damages and a permanent injunction. Payton then filed a legal malpractice suit against Clay. The trial court entered a directed verdict for Clay and Payton appealed. Payton claims that the trial court erred when it permitted Judge Waller to testify. Judge Waller had been the presiding judge in the Holland case. Judge Waller was not permitted to express any opinions during his testimony, he only testified as to the events and the proceedings in the underlying case.
Issue: May a judge from an underlying case testify in a legal malpractice suit?
Ruling: Yes, a judge may testify in the legal malpractice suit but only in a limited way. The judge may not express his opinions and may not testify as to what his decision would have been if the circumstances had been different.
Lesson: The judge in this case was permitted to testify because his testimony would not
Tagged with: Expert Witnesses, Kentucky
Posted in: Expert Witnesses