(This article appeared in "Los Angeles Daily Journal")
For a plaintiff to prevail in most legal malpractice cases, an expert witness must testify that the defendant-attorney was negligent. Negligence, as applied to an attorney, means that he or she fell below the standard of care practiced by reputable attorneys in the same or a similar locality. It is the failure to know the law and properly apply it.
If this point is not proven with expert testimony, a nonsuit will result. Although the attorney being sued can testify as an expert that he or she was not negligent, it is usually better strategy for the defense to retain an independent expert witness, since the jury may otherwise infer that there is no support for the defense position.
Although there are as many ways for a lawyer to mishandle a matter as there are different types of lawyers and legal matters, legal malpractice expert witnesses are generally of two types: litigation and specialist. The litigation expert becomes the jury's teacher of legal procedure and strategy. The specialist expert is the jury's teacher of the specific area of law that is involved in the underlying matter (e.g., tax, bankruptcy, probate, etc.).
For example, if the alleged error was a failure to take certain depositions in the underlying case, a litigation expert would be able to explain what depositions are and why they are important. However, if the legal error arose from a transactional matter involving the sale of a business without adequate documentation of security for indebtedness, a lawyer specializing in such an area will be needed to explain what security instruments are and why they are important.
The complexity of the law must be made understandable to the jury. Just as the testimony of an expert physician in a personal injury case can illustrate and illuminate medical questions of physical structure and function, an expert witness attorney should be used as a teacher of legal fundamentals.
The expert's task goes far beyond the conclusion that the defendant-lawyer did or did not fall below the standard of care; he or she must lay the foundation for the jurors to be able to understand the language of the law and the reasons why actions must be taken or avoided.
It is not enough for the expert to know the standards and the law; the expert must be able to make it understandable on a basic level. Suppose, for example, that the alleged malpractice dealt with a failure to name a "deep pocket" as a defendant in an injury case. The plaintiff's expert must be able to explain the public policy behind the principle of joint and several liability in a manner that brings out its fundamental fairness to the victim.
Before a legal malpractice case is undertaken, there must be a thorough evaluation of both the alleged attorney negligence and the underlying case. Some lawyers representing plaintiffs have mistakenly assumed that if the previous lawyer blew the statute of limitations, then the liability is a foregone conclusion. Far from it. In malpractice arising out of litigation, the subsequent legal malpractice action is, in reality, "a case within a case."
The first case is whether the defendant-attorney was negligent. The second case is whether the underlying matter would have resulted in a favorable prosecution or defense for the client who is the potential legal malpractice plaintiff.
A legal malpractice case is only as strong as the underlying case would have been if it had been properly prosecuted or defended. This aspect of the underlying case is the "causation" element. If the underlying case could not have been won, then the lawyer's malpractice in failing to file it on time caused no damages. Stated in an old-fashioned way: "You can't make a silk purse from a sow's ear." A losing case is not converted to a winning case just because the lawyer negligently handled it.
In many instances, the role of the legal malpractice expert in evaluating the underlying case is crucial. Consider a case arising out of a claim that an attorney recommended an inadequate settlement to his client. Before the expert can testify about whether the advice to settle was negligent, he must be familiar with the facts of the underlying case. What was the strength of the liability? What were the provable damages? Were there procedural factors or unsettled areas of case law which could affect the outcome of a trial? The expert must be able to testify about all these factors of the underlying case that would have gone into a competent opinion by the defendant-attorney in recommending the settlement. In such a case, it is best to engage the expert early in the litigation so that the trial attorney can develop the facts to support the expert's opinion.
There are drawbacks to retaining an expert who acts both as a consultant and a witness. One such problem is that the expert-consultant is privy to strategic information which may be discoverable when the expert's deposition is taken and he or she is asked to disclose everything that has been discussed with the retaining attorney.
Just as problematic is the fact that the expert witness, who has acted as a consultant assisting in the development of strategy, may be seen by the jury as just another lawyer for the plaintiff or defendant. This would destroy the image of the independent witness whose testimony is offered to give impartial expertise to the jury. Therefore, it may be advisable to retain two experts: a nontestifying consultant to assist in the preparation of the case and the design of cross-examination of the opposing expert, and a witness to testify regarding the standard of care and causation.
What information should the legal malpractice expert witness be given in preparation for his or her testimony? As with other experts, nothing should be contained in a writing that the trial lawyer would not want the jury to see. It is usually not a good idea to deluge the expert witness with every document and deposition in the case preparatory to a pretrial question of "what do you think?" Usually, it is better to prepare a statement of facts that you want the expert to assume as true for the purpose of posing a hypothetical question. In complex cases, a time line of events with pertinent documents attached as exhibits is excellent preparation for the expert.
If the expert is requested to render his or her opinions in writing, the retaining attorney should first have a conference with the expert to make sure that the expert has all the information that is necessary. In the conference, the purpose for the report can be discussed, and any incorrect information or misunderstood goals can be corrected and clarified. Many experienced trial lawyers believe that unless there is a specific reason for needing a written report, it is better practice not to request such a report, since it usually gives the other side an unnecessary advantage in preparing for deposition and cross-examination.
In the selection of an expert, there are many choices, from renowned authorities to general practitioners. This is a matter of strategy. Some choices that should be avoided include friends of the trial lawyer or the defendant. Once that relationship is disclosed, credibility will be seriously diminished.
What is ultimately required is a professional who can exude the credibility and experience that a jury will want to rely on. In the "battle of the experts," the jury will weigh the relative credentials of the opposing experts, so the content of the expert's professional resume is always important.