Role of Expert In Legal Malpractice

By Michael A. Collora
Send Email to: mcollora@dwyercollora.com     
   
 
MCLE Seminar, March 30, 1999 © MCLE, Inc. All Rights Reserved.

Whether you represent the plaintiff or defendant in a legal malpractice claim, you are likely to need the services of an expert to give you and ultimately the trier of fact an opinion on whether the acts in question fell below the standard of care an attorney owes a client in Massachusetts. This article explores Massachusetts caselaw in that area.

I. Elements of a Legal Malpractice Case

In Massachusetts as elsewhere, an attorney normally owes his client an obligation to exercise a reasonable degree of care and skill in the performance of his legal duties. See Clark v. Rowe, 428 Mass. 339, 341, 701 N.E.2d 624, 626 (1998); Pongonis v. Saab, 396 Mass. 1005, 1005, 1006, 486 N.E.2d 28, 29, (1985), citing Glidden v. Terranova, 12 Mass.App.Ct. 597, 598, 427 N.E. 2d 1169, 1170 (1981).

To succeed in a legal malpractice case, the plaintiff must show (i) the existence of an attorney-client relationship giving rise to a duty of care and/or contract, (ii) a violation of that duty by the attorney which in turn (iii) caused or was the proximate cause of (iv) a loss or damages. See Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, 25 Mass.App.Ct. 107, 111, 515 N.E. 2d 891, 894 (1987). In alleging malpractice in a litigation matter, if the malpractice plaintiff was also the underlying plaintiff, he or she must prove that the claim would have been successful, at least to the extent of showing that he or she lost a probability of success as a result of the alleged negligence. See Colucci, 25 Mass.App.Ct. at 113, 515 N.E.2d at 895. However, the burden is somewhat different on the malpractice plaintiff if he or she was the underlying defendant below. There, the duty would be on the defendant/attorney to bear the burden of proof "since the client had no obligation to prove his case in the underlying action … he should not shoulder the burden of proving a defense in the malpractice action." Glidden, 12 Mass.App.Ct. at 600, 427 N.E. 2d at 1171-1172, approved on this point in Deerfield Plastics Co., v. Hartford Ins. Co., 404 Mass. 484, 486 n.3 536 N.E.2d 322, 324, n.3 (1989). See also Glenn v. Aiken, 409 Mass. 699, 706, 569 N.E. 2d 783, 787 (1991).

In addition, in litigation cases, a malpractice plaintiff who was also the plaintiff in the underlying action must prove that any judgment would have been collected. See Jernigan v. Giard, 398 Mass. 721, 723, 500 N.E.2d 806, 807 (1986); DiPiero v. Goodman, 14 Mass.App.Ct. 929, 930, 486 N.E.2d 998, 1000, cert. denied, 460 U.S. 1029 (1983). However, when the plaintiff was a defendant in the underlying case, the collectibility requirement is not involved. The entry of an adverse judgment is sufficient injury for a legal malpractice action regardless of whether the judgment has been paid. Cf. Jenkins v. General Accident Fire & Life Assurance Corp., 349 Mass. 699, 702-703, 212 N.E.2d 464, 467 (1965). Finally, a former criminal defendant must prove by a preponderance of the evidence that he is innocent of the crime charged. See Glenn, 409 Mass. at 707, 569 N.E.2d at 788 (noting that defendant attorney was entitled to testify to relevant statements by his former client unrestrained by attorney-client privilege).

II. General Necessity for Expert

The appellate cases reviewing legal malpractice verdicts are replete with language that generally require at least the plaintiff to introduce expert testimony on whether the attorney defendant failed to meet the standard of care. To fail to hire an expert is dangerous. As the Court noted in Pongonis v. Saab, "[e]xpert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case." 396 Mass. at 1005, 486 N.E.2d at 29.

Or, as the Appeals Court stated in DiPiero v. Goodman, "the plaintiff was obliged to present expert testimony to establish the standard of care owed by an attorney in the particular circumstances and the defendants’ alleged departure from it." 14 Mass.App.Ct. at 929-930, 436 N.E.2d at 999. Testimony that the expert would have acted differently is insufficient—the testimony must indicate that the conduct at issue fell below the standard of the community.

Expert testimony may not be necessary where the claimed legal malpractice is so gross and/or obvious that laymen can rely on their common knowledge. For example, in Wagenmann v. Adams, 829 F.2d 196 (1st Cir. 1987), plaintiff sued an attorney and went to trial without an expert in a case involving false imprisonment, where his attorney allegedly did almost nothing to prevent the episode. While agreeing and citing to Massachusetts caselaw where expert testimony is normally required, the First Circuit found that the actions and inactions at issue were so egregious as to fit within the confines of the narrow malpractice classification – "gross or obvious"— where an expert would not be required. Id. at 219. See also Stewart Title Guar. Co., Inc. v. Jones, 1997 WL 879490 (Mass. Super. Ct., July 13,1994) (granting summary judgment for the plaintiff without expert testimony in a situation where the attorney missed a mortgage when examining and certifying title; the Court instead relied upon caselaw and legal commentary to reach its result); Republic Oil Corp. v. Danziger, 9 Mass.App.Ct. 858, 859, 400 N.E.2d 1315, 1317 (1980) (affirming plaintiff’s motion for summary judgment on issue of defendant attorney’s liability where he admitted he failed to disclose to plaintiff the existence of a perfected security interest in equipment).

However, given the normal, technical areas where fault can be found, it would be foolhardy not to consider consulting and later calling an expert if you represent the plaintiff. To survive a defendant’s pretrial motion for summary judgment, or after the plaintiff has closed his or her case at trial, without an expert, or an admission of malpractice, you must be confident that the error was gross and/or obvious to a layperson. In seven appellate cases examined between 1981 and present where no expert testimony was offered by plaintiff, only one plaintiff’s verdict was affirmed. See Glidden, 12 Mass.App.Ct. at 599-601, 427 N.E.2d at 1171-1172 (defendant’s verdict reversed; no expert needed since plaintiff in the legal malpractice action was defendant below and did not have burden of showing likely success).

In various other cases where no expert was called by plaintiff, the plaintiff’s verdict was either reversed or defendant’s judgment was affirmed on the basis that expert testimony was lacking: (1) Harris v. Magri, 39 Mass.App.Ct. 349, 656 N.E.2d 585 (1995) (plaintiff’s judgment reversed); (2) Colucci, 25 Mass.App.Ct. at 116, 515 N.E.2d at 897 (plaintiff’s judgment reversed); (3) Pongonis, 396 Mass. at 1005, 486 N.E.2d at 29 (defendant’s judgment affirmed); (4) DiPiero, 14 Mass.App.Ct. 929, 436 N.E.2d 998 (defendant’s judgment affirmed, insufficient expert opinion on effect of failed service); (5) Brown v. Gerstein, 17 Mass.App.Ct. 558, 566-567, 460 N.E.2d 1043, 1049 (1984) (malpractice judgment for defendant affirmed as no expert called as to whether a certain statute should have been discovered and pled; however, deceit claim could still go to jury); (6) Siano v. Martinelli, 12 Mass.App.Ct. 946, 427 N.E.2d 489 (1981) (defendant’s verdict affirmed; no expert opinion offered that negligence caused a loss).

There is no commensurate duty of providing an expert for a defendant/lawyer. First, of course, the burden of proof is normally on the plaintiff. Secondly, the defendant himself may be an expert and can testify (if credible) as to the propriety of his actions. Thus, it is optional, but advisable for the defendant to have an expert available to offer an opinion.

Of course, in a battle of experts, where the plaintiff and defendant’s expert witnesses give conflicting testimony, the fact finder decides the credibility and weight of the testimony. See J. Edmund & Co. v. Rosen, 412 Mass. 572, 576, 591 N.E.2d 179, 181 (1992); Romano v. Weiss, 26 Mass.App.Ct. 162, 169, 524 N.E.2d 1381, 1385 (1988).

III. Areas of Testimony

A. Liability

An expert is normally necessary to establish the duty of care owed the plaintiff and opine as to defendant’s violation of it. That is, the expert must testify in the liability phase of the proceeding. Some examples may assist the practitioner.

In DiPiero v. Goodman, plaintiff alleged that the defendant law firm had failed to obtain service and sought from them ten years of unpaid child support, legal fees and expenses. In affirming judgment for the defendant, the Court held that whether service could have been effected was not within the purview of the jury. The plaintiff’s expert failed to opine how defendants should have proceeded, nor did he give an opinion that their actions (or inactions) amounted to malpractice. 14 Mass.App.Ct. at 930, 436 N.E.2d at 999-1000.

In Brown v. Gerstein, it was conceded defendant had negligently failed to enjoin a foreclosure action against plaintiff’s property. However, plaintiff failed to show by expert testimony whether the injunction would have been successful had such a suit been filed. Although plaintiff claimed defendants also failed to give them advice as to alternatives, there was no expert opinion that these options were feasible or within the scope of the engagement. Thus, the malpractice claim as to that theory also failed. However, a deceit count was revised and permitted to go to the jury as it would not require expert testimony. 17 Mass.App. at 565-567, 460 N.E.2d at 1050.

In another case, summary judgment for the defendant was denied with respect to malpractice arising from the failure to file an uninsured motorist claim; plaintiff’s expert testified that the attorney/defendant’s investigation was substandard. Partin v. Fischer, 1997 WL 124104 (Suffolk Super. Ct., March 4, 1997). In that same case, plaintiff’s expert did not opine as to the failure by the defendant’s attorney to collect a judgment. Consequently, in granting summary judgment for defendant on that claim, the court held that the defendant’s conduct with respect to collecting the judgment was neither gross nor obvious malpractice and in the absence of expert testimony that claim failed.

B. Causation

Whether defendant’s attorney’s malpractice caused the loss if any to plaintiff is normally a jury issue. See Girardi v. Gabriel, 38 Mass.App.Ct. 553, 558 649 N.E.2d 805 (1995); Glenn, 409 Mass. 699, 569 N.E.2d 783. But see Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984) (on summary judgment record there were no facts that could reasonably contradict the inference that the attorney acted with skill and diligence). Causation may be obvious, perhaps involving a missed title or court deadline. In such a case, the link between the negligence and resultant damage (both of which elements might require expert testimony) is obvious. However, in other cases a causal link must be established – what should the lawyer have done in the particular case.

Just as a medical malpractice case, an opinion of expert counsel, if permitted, can bridge the gap between the alleged breach of duty and the damages. This area of law however is not well developed and the practitioner must tread carefully.

In Girardi v. Gabriel, the plaintiff did offer expert opinion that defendant’s negligence "caused" her damage, although the damages appeared speculative. The Court below concluded the losses due to defendant’s negligence were too remote and on appeal affirmed judgment for the defendant other than a claim for additional legal fees. The appellate court agreed with the trial court’s conclusion, apparently not accepting plaintiff’s expert conclusions that the loss was linked to the negligence. It did not say, however that testimony on causation generally was too speculative.

In some instances, the proposed expert’s testimony may avoid a trial within a trial, by suggesting the value of a case, where the defendant/attorney was negligent in some fashion. In Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, plaintiff argued that defendant law firm acted unreasonably in stopping its legal work; consequently plaintiffs did not get a restraining order. The Appeals Court said plaintiffs must show (which they did not) that but for the negligence, the client probably would have been successful in obtaining from a three-judge panel a temporary restraining order or a preliminary injunction. "In the circumstances of this case, expert testimony [on the subject of injunctive relief under the Anti-Injunction Act] to establish this alleged loss was necessary," 25 Mass.App.Ct. at 113, 515 N.E.2d at 896.

In Siano v. Martinelli, plaintiff alleged and proved that defendant lawyer failed to perfect an appeal, but provided no testimony that this neglect resulted in damage. Lacking evidence either as to causation or damage, judgment for defendant was affirmed. 12 Mass.App.Ct. at 947, 427 N.E.2d at 490.

C. Loss/Damages

Experts, including attorneys, may testify as to damages where relevant. Indeed, if it’s a case within a case, where it would have been required originally, the plaintiff will have to try the underlying case using expert testimony (e.g., a medical expert) or face dismissal. See, e.g., Eno v. Watkins, 429 N.W.2d 371 (Neb. 1988) (plaintiff failed to show injuries through expert medical testimony). If the jury finds malpractice, damages are at a minimum nominal. See, Fall River Sav. Bank v. Callahan, 18 Mass.App.Ct. 76, 82, 463 N.E.2d 555, 560, further rev. denied, 392 Mass. 1103, 465 N.E.2d 262 (1984). Thus, damages should always be entered where malpractice and causation are found.

Some plaintiffs have tried to avoid the case within a case method of damages, by having expert testimony as to the ultimate result. If there is opposition, the Courts have resisted this shortcut. See discussion in Mallen & Smith Legal Malpractice, Ch. 32 at 221-223 (4th ed. 1996).

Of course, many malpractice cases do not involve complaints about an underlying action and thus do not involve a case within a case. See, e.g., Fiedler v. Adams, 466 N.W.2d 39 (Minn. 1991) (discussion of elements necessary for claim where no underlying litigation).

The value of a settlement, if there is evidence that an offer was made but not pursued adequately due to attorney negligence, may avoid a "trial within a trial" scenario, but expert testimony both as to violation of the standard of care and the reasonable settlement value may be necessary. In Fishman v. Brooks, 396 Mass. 643, 487 N.E.2d 1377 (1986), the court noted that if the plaintiff argued he was entitled to the difference between the lowest amount at which his case probably would have been settled, as evidenced by expert testimony, and the amount of the settlement there would be no need for a trial within a trial. However, the plaintiff’s potential recovery would be more limited than the traditional approach. Id. at 647 n.1.

Failure or inability of the expert to opine as to damages may doom an otherwise successful negligence case. See, e.g., Girardi, 38 Mass.App.Ct. at 558, 560 649 N.E.2d at 808-809 (expert attorney "could not specify the particular losses resulting from the [defendant attorneys’] inability to manage the trust…. he could only speculate …. [as a result] plaintiff has not presented evidence from which a jury could conclude that … the loss resulted directly from the tortious conduct"); Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass.App.Ct. 509, 519-520, 633 N.E.2d 424, 430 (1994) (affirming exclusion of testimony of business expert on net worth of corporation as too speculative).

D. Ethical Violations

The violation of an ethical duty, if designed to protect the client and otherwise relevant, may be used as some evidence of negligence, but cannot by itself serve as the basis for liability. See Fishman, 396 Mass. at 649, 487 N.E.2d at 1381-1382.

In Massachusetts, the Fishman court warned that it would not permit expert testimony that a defendant/attorney had committed an ethical violation – that is a job for the trial court to so instruct the jury. However, it did say that an expert may base his opinion on the attorney’s ethical failure, if one were alleged. 396 Mass. at 650, 487 N.E.2d at 1382.

These somewhat contradictory statements were explained by Judge McHugh in GTE Government Systems Corp. v. Rackman, Sawyer & Brewster, 1993 WL 818682 (Mass. Super. Ct., February 1, 1993) where he opined that expert testimony concerning an ethical violation is admissible where the expert establishes the standard of care by reference to a disciplinary rule – but it is only evidence of the process by which the expert forms his or her opinion and the jury should be so instructed. He noted the jury must also be told that it has the ultimate decision of whether there was an ethical violation and its effect.

The most common ethical violation appears to be serving more than one client without appropriate notice and waiver. See, e.g., Harris v. Magri, 39 Mass.App.Ct. 349, 351, n. 4, 656 N.E.2d 585, 586 (1995); GTE Government Systems Corp. v. Rackman, Sawyer & Brewster, 1993 WL 818682 (Mass.Super.Ct. December 6, 1993). The conflict, if any, must of course be causally related to the damages before it would be deemed admissible.

E. Opinion As To The Law

Can a lawyer as expert testify as to what a trial court or appeals court might have done, if the matter had been properly handled?

If the issue to be tried is the reasonableness of the attorney’s belief as to the then current status of the law, expert testimony can be introduced as to whether that belief was reasonable, but the actual law must be found by the Court. See Romano, 26 Mass.App.Ct. at 170 n. 18, 524 N.E.2d at 1386 citing to Stafford v. Garrett, 46 Or. App. 781, 613 p.2 99 (1980) (whether malpractice plaintiff would have prevailed on appeal on underlying case is a question of law to be decided by the court). Expert testimony may be necessary to show what the law was that the lawyer should have known, although accompanied by a limiting instruction as to the effect of such an instruction. See Cianbro Corp. v. Jeffcoat & Martin, 804 F.Supp. 784, 791 (D.S.C. 1992) (malpractice action failed where plaintiff failed to present expert testimony in an area of unsettled law, even though the statute of limitations was missed), affirming, 109 F.3d 806 (4th Cir. 1993).

Calling the actual trial judge in the case to answer hypotheticals, or act as a witness is disfavored. See Glenn, 409 Mass. at 703-704, 569 N.E.2d at 786.

F. Judge Trials

The overwhelming consensus seems to be that a trial without a jury should normally not differ from that with a jury. The reasoning is that expert testimony should be tested by the evidence, including cross examination and that in any event a judge may or may not be an expert in the area involved in the litigation. See Brewer, Expert Witness Testimony in Legal Malpractice Case, 45 South Carolina Law Review 727, 734 (1994).

Some exceptions may apply, particularly in real estate, where the issue might be more legal than factual. As noted in Callahan, a trial to a judge in certain categories of cases may obviate the need for expert testimony. That case involved title defects allegedly missed by the defendant attorney, but did involve expert testimony by both sides. The court said it will permit a trial judge to consult reported opinions, standard texts and law review articles and said consultation may lessen, obviate or supplement expert testimony. Callahan, 18 Mass.App.Ct. at 83, 463 N.E.2d at 555 (handbook & articles permitted to supplement expert testimony in conveyancing malpractice case).

Conclusion

Employment of an expert prior to bringing a malpractice action would seem virtually mandatory by plaintiff’s counsel for most legal malpractice cases, even if the event of malpractice seems straight forward. Additionally, care must be taken to link the act of malpractice with the damages suffered by plaintiff – or risk an adverse verdict.

A defendant, of course, need not hire an expert, although it is advisable to consult one in the event that the defendant is not particularly credible or the case will be lost without one.