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KY: Judge As A Witness Not Permitted

Marrs v. Kelly, 95 S.W.3d 856 (Ky. 2003)

KY: Underlying Workers Compensation

Student Contributor: Louis Dell

Facts: Mars injured her back at work and brought a workers compensation claim. Mars was represented by Kelly. She received a 10% occupational disability settlement. Several years later she injured her back again and received the same settlement. She was then laid off of work because she could no longer do her job. She reopened the second case seeking total disability but was only awarded an additional 10%. She then brought a claim against Kelly for negligent misrepresentation. Mars claimed that Kelly failed to introduce expert testimony that could have resulted in her receiving total disability benefits. Mars objected to the introduction of this testimony. Kelly introduced testimony from the administrative law judge stating that the addition of the expert reports would not have changed his decision. The circuit court granted summary judgment to Kelly. Mars appealed and the court of appeals affirmed. The case was then brought to the Supreme Court.

Issue: May the testimony of the original judge in the underlying case be used in the legal malpractice case?

Ruling: No, the administrative law judge should not have been allowed to testify. Allowing him to testify confuses “the role of an objectively reasonable judge with the views of the particular judge and resulted in application of the wrong standard for determining whether the legal malpractice case should have been submitted to the trier of fact.”

Lesson: The subjective standard considers what the presiding judge would have awarded had the attorney not been negligent while the objective standard considers what a “reasonable judge” would have awarded under the same or similar circumstances. Kentucky adopted the objective standard.  

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Posted in: Torts/Personal Injury