An Overview of Legal Malpractice
When you are represented by a lawyer, you have a right to expect them to provide competent legal services. Otherwise, they may be committing legal malpractice. Legal malpractice is defined as a failure by a legal professional to perform competently, resulting in harm and possibly financial loss to their client. In addition to your financial loss, it can entail emotional distress, the cost of having to hire another attorney, and the value of the case that has been lost.
Not every mistake amounts to malpractice. Potential issues with a case may involve a timing mistake , meaning that your lawyer failed to file your case before the statute of limitations ran out. You may have a mistake trend, where your attorney makes repeat mistakes in more than one case that causes significant problems.
Other forms of legal malpractice involve a conflict of interest, such as representing clients with opposing interests in a divorce case, or representing a client after you have developed an inappropriate sexual relationship. Failure to provide competent representation can also involve billing mistakes, incompetence, failing to perform the work needed for a case, and failure to comply with ethical rules.
The Role of an Expert Witness in Legal Malpractice
Expert witnesses in legal malpractice are critical to the outcome of the case. First, the complexity of the issues at play in the litigation build a wall around the concepts which need to be conveyed to the judge and jury. A layperson is, of course, incapable of grasping the nature of a highly technical area of the law or reviewing other legal concepts, and would be baffled by an attempt to explain real estate transactions, corporate bankruptcies, personal injury claims, mortgages and the like. An expert witness is a lawyer with experience in the area of the underlying case who can explain to the lay people how these issues work, and to some extent, whether the conduct of the defendant lawyer was reasonable or not.
In addition to explaining the underlying issues, the expert testimonial will draw reasonable conclusions and opinions from the standard of practice. The expert will discuss what most lawyers do when presented with a similar set of facts. The expert’s role is to describe those actions, and whether the defendant’s actions vary in any material way from them. An expert will then chronicle what would have been a reasonable course of action based on the facts of the case.
If the defense is of the don’t know, don’t remember, don’t care variety, then the same defense counsel should retain their own expert to testify. If the defense counsel does not engage an expert, then either counsel will be questioned as to whether they were lazy and didn’t care enough to get an expert to educate the judge/jury, or to stifle the other side’s ability to teach the judge/jury.
How to Assess a Legal Malpractice Expert Witness
A legal malpractice expert witness is an experienced attorney. Most commonly an attorney who has been practicing law in the relevant subject area for 5-15 years. The expert must be able to articulate and explain to a lay audience the relevant standards of care and breaches of duty, as well as opine on the whether a departure from the standard of care was both the "but for" and "proximate" cause of the plaintiff’s damages.
The Process of Choosing an Expert Witness
Expert witnesses play a crucial role in legal malpractice cases as they provide an objective viewpoint that can bolster your claims and help you prove your case. As with any other witness, it is important to ensure that this individual has the proper qualifications to testify in court. Following are some key considerations to keep in mind when selecting an expert witness.
Does the Expert Have Specific Experience Relevant to the Case? You may choose not to hire an expert witness who does not possess particular experience or information related to your specific legal malpractice case. For example, a divorce attorney who has handled cases involving child custody issues may not necessarily be the best match for your legal malpractice case against a criminal defense attorney accused of failing to inform his client of pending criminal charges. Having no specific experience with cases involving allegations of ineffective assistance of counsel may prevent an attorney from effectively testifying on the defendant’s behalf.
Has the Expert Been Disqualified in the Past? An unsuccessful legal malpractice case may have resulted in the plaintiff’s attorney seeking to have the defendant’s expert witness thrown off the case, or vice versa. If an expert has been disqualified in another case, it may be prudent to stay away from that individual. It’s possible that their past disqualification could have been the result of inadequate information or a poor argument, but it is important to consider this issue very carefully before deciding to proceed with that expert.
Can the Expert Help Narrow the Focus of the Testimony? The expert’s discovery deposition will provide further insight as to whether his or her qualifications align with your needs. Keep in mind that if the attorney examiner’s testimony is deemed to be irrelevant at trial, a motion to strike is likely to be made by opposing counsel. This is why your choice for expert witness should be as precise as possible in order to avoid granting opposing counsel the opportunity to exclude that person’s testimony in the preparation stages of the case.
What Is the Expert’s Affidavit Like? The attorney examiner’s affidavit will also be highly relevant to your decision. A lack of precision in the affidavit should set off warning signals for you and should alert you that this could become an issues at trial.
How an Expert Witness’s Testimony Can Influence Your Case
Expert testimony can make or break a legal malpractice case. In New York County Supreme Court we’d often have an expert found to be "unreliable" for just a minor error in one type of practice or another, or for citing the incorrect date in an Affidavit – and the entire case would go out the window, despite our ability to show through other evidence that the result would have been the same with "proper" practice.
In one case, a defendant expert went off on a minor point of law , although the important facts were paid attention to. A federal case was lost against a major bank when a plaintiff expert had no familiarity with the technical aspects of doing expert testimony. The case limped along for almost 9 years and ended abruptly short of trial in a summary judgment ruling based upon the Affidavit of a well known "star" plaintiff expert. The entire case could have been avoided had the TPA simply asked the right expert to do the job.
Yet another case demonstrates the importance of why expert testimony is necessary for a legal malpractice case. The 2d Dept. determined in Braha v. Braha 2019 NY Slip Op 06376 [175 AD3d 640] that the court properly refused to read an affirmation from a legal malpractice expert into the record.
What Challenges Do Expert Witnesses Face in Legal Malpractice Cases?
Testifying in any capacity can be difficult, but perhaps nowhere is it more so than in a legal malpractice case. For the layperson, the stakes are high; the outcome of the case could determine whether or not they are successful in recovering damages against what they believe to be a negligent attorney. For the attorney being sued, the implications can be equally as grave. If a legal malpractice case is successful, it could lead to other lawsuits being filed against that attorney by other clients who might feel the same way, opening that attorney up to further liability.
In order to best serve the parties involved in the case, an expert witness therefore needs to be both convincing to the jury, and accurate in their testimony. On cross-examination, areas of contention and needless minutiae are likely to be focused on, due to both the ability to take key pieces of testimony out of context, and the level of ire that the other party holds for the expert witness.
For the plaintiff, leaving out critical facts or confusing points of law can leave the expert open to ridicule, therefore diminishing the credibility of the testimony. On the other hand, the defendant will do everything possible to show that the expert witness has been influenced by the other party, or did not fully adhere to the professional standards of their own field in arriving at their conclusions.
Legal malpractice expert witnesses are often subjected to intense scrutiny for their perceived biases. While it is not necessary for an expert witness to be completely free from financial or personal biases, the perception that they stand to benefit from the outcome of the trial can lead to a complete rejection of the credibility of the witness.
They are also likely to be faced with questions about their education, licenses and certifications, and professional experience, which can lead to feelings of intimidation on the part of the expert witness, and confusion about the purpose of the trial.
If you are in the position of an expert witness, it is important to remember that you will never know everything there is to know about a topic, since there is too much constantly changing information available on every subject.
The Future of Expert Witnesses in Legal Malpractice
The role of expert witnesses in legal malpractice cases has evolved markedly over the years, so much so that it is difficult to foresee how that role may continue to change. Likely advances in technology will affect the way cases are prepared and prosecuted in ways that are hard to imagine today as will changes in court procedures. The internet will likely continue to provide parties with greater access to information than any time in history. Theoretical advances in technology will certainly change the kinds of work lawyers are called upon to do. The legal field is ever-changing, and even as we speak, there are new areas of law developing such as autonomous vehicle law, data privacy law, and legal technology.
However, legal malpractice expert witnesses have no immediate concerns. Courts still will occasionally require expert testimony to establish the standard of care for attorneys. The need for expert testimony on the issue of damages will continue to be an issue, even with the increased use and availability of more reliable forensic evidence .
Legal malpractice litigation is now ubiquitous in the United States, but several states have only recently begun to allow lawsuits to be brought against attorneys who represent clients in probate matters. The rising tide of civil claims against attorneys who represent parties in the reorganization or liquidation of businesses or in the administration of estates is at least partly due to a perception that those lawyers or their clients are not being held accountable or are not following professional standards when dealing with the assets of debtors, incapacitated persons, and deceased people.
As this expanding area of legal malpractice law takes root in the states that have just begun to recognize the viability of legal malpractice claims involving these types of matters, legal malpractice expert witnesses will be called upon to offer testimony on the applicable standards in those cases. In other cases, legal malpractice expert witnesses will be called upon to provide mitigation analysis, financial damage assessments, and analysis of what went wrong in the underlying transaction or case.