It can be a real challenge to represent a plaintiff in a legal malpractice case against a lawyer who negligently handled a medical malpractice case. More to the point, you need two expert witnesses – one in law and one in medicine.
The legal malpractice case based on an underlying medical malpractice claim starts with the search for an expert witness in each discipline to review the case and lay out strengths and weaknesses. You will have to prove the “case-within-the-case,” meaning that you will have to prove that the original lawsuit for which the lawyer-defendant was hired would have been successful but for the legal malpractice committed. These are two lawsuits to evaluate and both must have viability.
There are strategic considerations around whether to use a local or a remote expert witness for the legal malpractice case. It could make jury selection more difficult as members of the pool may be former clients, opposing parties, and even colleagues. It could lead to tension for the attorney expert witness if he travels in the legal circles that will become increasingly familiar with the impending trial. But, on the other hand, a local attorney expert witness in good standing in the legal and broader community can become the reason for settlement.
To go outside the local community is to risk the criticism that the expert witness isn’t familiar with the local legal community. Even if the negligence standard is uniform for all attorneys across the state, there may be a community knows best feeling among the jury, whether spoken or unspoken. An expert witness from a large population center if you are in a rural area could be perceived as too strong or too exacting, even while the conflicting emotion wells up in jury members that everyone truly wants the best representation.
Whichever route you choose for the selection of your attorney expert witness, remember to hire an equally strong expert witness for the underlying medical malpractice case. The strength of the underlying expert witness can set the damages for the attorney expert witness, by valuing the first case, which should then be increased or multiplied in the second case.
This type of case may also be one for consideration of whether to have the expert witnesses communicate with each other or share any of their written documents. When there is more than one expert witness in a single case, there is the risk that the experts contradict or appear to contradict each other. You will want also to reduce the scenario of opposing counsel asking one expert a question on cross-examination that fails to disclose that the question is based upon the testimony of a prior expert witness, as opposing counsel attempts to use one of your expert witnesses to disagree with the other.
By: Paloma A. Capanna, Attorney At Law