litigatorsCases involving attorney malpractice are on the rise. A seasoned attorney would likely advise against choosing an expert based upon assertions that their sole expertise is “legal malpractice services.” Perhaps this is because it is nearly impossible for a single individual to possess the level of competence sufficient to provide comprehensive expert services for nearly every civilly litigated action involving attorney malpractice.

While improper reliance on an expert’s all-inclusive ability could be justified upon grounds that, although facially the term ‘attorney malpractice’ appears overly broad, the legal elements to such action remains the same as other negligence matters. In that sense, an expert’s capability to provide supporting or negating evidence as to the elements of negligence—duty, breach, causation, damages—is certainly a valuable preliminary assessment. However, the consideration must then turn to the expert’s ability to present evidence regarding the legal standard of care in malpractice matters. This requires going beyond the basic elements of negligence, and in fact some jurisdictions have established a general rule requiring the use of experts in legal malpractice cases. “The general rule is that where [an attorney’s] exercise of proper professional skill and care is in issue, expert testimony tending to establish the want of such skill and care is essential to recovery. . . . The rationale underlying that rule is that in most cases, the determination of an attorney’s standard of care, which depends on the particular circumstances of the attorney’s representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge.  St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn.App. 88, 95, 851 A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004).  Connecticut, like other jurisdictions has set forth an exception to the rule  “where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layperson.” Id.  Because most jurisdictions have declined to establish a brightline rule regarding requirement of experts in legal malpractice case, it is important to know the law in which your jurisdiction adheres to prior to seeking an expert.

The third preliminary consideration in choosing an attorney malpractice expert should focus the presence of criteria-specific expertise—which is directly related to the subject matter of the underlying litigation that resulted in the malpractice. The necessity of this consideration is easily exemplified by a comparison of potential underlying matters involved in the attorney malpractice. For example, alleged attorney malpractice occurring during representation in a Real Estate or Trust and Estate matter, typically requires expertise much different from alleged malpractice involving representation in a corporate governance matter.

Certainly it is valuable for an expert to be capable of supporting or negating the presence or absence of negligence, but the more appropriate preliminary assessment of an attorney malpractice expert should involve a treble evaluation of the expert’s (1) ability in providing expertise in elemental requisites associated with negligence matters; (2) ability to provide supporting evidence regarding legal standard of care as it relates to duty; and (3) possession of the requisite knowledge, experience, education, in the specific field of law involved in the underlying action that prompted the attorney malpractice action.

Additional considerations include the ability of the expert to assess, interpret, and present evidence of damage amounts in the specific area of expertise. The considerations asserted herein, are not intended to be an exhaustive list. Accordingly, assessment of a legal malpractice expert witness should be performed on a case by case basis. By taking the time to fully assess an attorney malpractice expert’s precise capabilities, as it pertains to a particular matter, adverse rulings associated with the selected expert might be preventable. However, in order to benefit from such preventative measures, such assessments are more appropriately conducted during the initial stages of the action.

By: Alicia McKnight,  J.D.