Expert Testimony In Legal Malpractice Actions The potential for expert testimony arises in almost all negligence or malpractice claims against an attorney. Although every state admits expert testimony in legal malpractice actions, there is a disparity among jurisdictions as to whether such testimony should be mandatory. This comment is limited to the issue of when a court will demand expert testimony in a legal malpractice action. In malpractice actions against attorneys the general rule is to permit, but not require, expert testimony.' In a recent Wisconsin malpractice case,% the court held that expert testimony is not required to establish the standard of care or skill unrelated to any form of special legal knowledge or expertise. The court declared that a failure to follow a client's specific instructions concerning a proposed mortgage document constituted apparent and obvious negligence without the need for expert testimony. Similarly, in Collins v. Greenstreet,= the Hawaii Supreme Court explained that most jurisdictions do not require that expert testimony be presented to establish the standard of care in all cases involving legal malpractice. Likewise, the New Mexico Court of Appeals has determined that it does not require expert testimony to establish the negligence of an attorney who is ignorant of the applicable statute of limitations.' Most of the legal malpractice cases that overlook the necessity of expert testimony concern issues of negligence that are considered apparent or obvious enough for the jury to percei~e.~ Recently, the Michigan Court of Appeals ruled that an attorney has a duty to disclose and discuss with his client any good faith offers to settle the case. In addition, the court thought that a breach of this 1. See Walker v. Bangs, 92 Wash. 2d 854,601 P.2d 1279 (1979); Note, 43 IND. L.J. 771, 779 (1968); Comment, New Developments in Legal Malpractice, 26 AM. U.L. REV. 408 (1977). 2. Olfe v. Gordon, 93 Wis. 2d 173, 286 N.W.2d 573 (1980). 3. 595 P.2d 275 (Hawaii 1979). 4. George v. Caton, 93 N.M. 370, 600 P.2d 822, 829 (1979). 5. Schmidt v. Hinshaw, 75 Ill. App.3d 516,394 N.E.2d 559 (1979); Watkins v. Shepard, 278 So. 2d 890 (La. App. 1973); Central Cab Co. v. Clarke, 259 Md. 542, 270 A.2d 662 (1970).
294 The Journal of the Legal Profession duty was well within the ordinary knowledge and experience of a layman jury, and thus no expert testimony was req~ired.~ In Hanson u. Wightman,' the Washington Court of Appeals concluded that the establishment of a proper standard of care by expert testimony is unnecessary where the area of alleged malpractice is within the common knowledge of laymen. Despite the general rule that expert testimony is not required in legal malpractice actions, there are certain circumstances that demand this type testimony. The vast majority of cases that require expert testimony in determining the proper standard of care involve an attorney's conduct which is related to some form of special knowledge or legal expertise. While expert testimony should not be necessary where the negligence charged is within-the ordinary knowledge of lay persons, clearly in cases alleging an attorney's negligence in regard to some complex legal theory, the need for expert testimony seems cru~ial.~ In Baker v. Be~l,~ a malpractice action was brought against an attorney for failing to bring a particular "dram shop" action. The Iowa Supreme Court concluded that the plaintiff was obligated to produce some expert testimony, as the defendant-attorney's conduct in bringing suit only under the "old" dram shop statute did not fall within the common knowledge or experience of laymen. Likewise, the California court in Kirsch v. Duryealo concluded that the extent to which an attorney, in the exercise of due care, will advance funds to hire investigators, depose witnesses, or perform tests on a client is not a matter of common knowledge. In cases where the asserted negligence arises out of a specialized or technical area of legal practice, the need for expert testimony is critical. Without such testimony, the jury would more than likely be confused and unable to determine whether the attorney conformed to the proper standard of care appropriate in the legal profession.ll A jury could not know or even form a reasonable impression as to whether the attorney's conduct was negligent or unreasonable.la In requiring expert testimony, a Georgia court 6. Joos v. Auto Owners Insurance Co., 288 N.W.2d 443 (Mich. App. 1979). 7. 538 P.2d 1238 (Wash. App. 1975). 8. See note 1 supra. 9. 225 N.W.2d 106 (Iowa 1975). 10. 146 Cal. Rptr. 218, 224, 578 P.2d 935, 940 (1978). 11. 26 AM. U.L. REV., supra note 1, at 432. 12. Walters v. Hastings, 84 N.M. 101, 500 P.2d 186 (1972).
announced: Expert Testimony in Malpractice The reason for this requirement is simply that a jury cannot rationally apply negligence principles to professional conduct absent evidence of what the competent lawyer would have done under similar circumstances, and the jury may not be permitted to speculate about what the professional custom may be.18 The Illinois Court of Appeals, in Schmidt v. Hinshaw,14 held that expert testimony was necessary, as the common sense of laymen could hardly be relied upon to provide the requisite standard of care for the drafting of a relatively complex, multi-document transaction. In a similar case, a Washington court ruled that allegations of negligence pertaining to trial tactics involved in a maritime claim required expert testimony because of the complex legal issues.16 In a malpractice suit against two attorneys for failure to file a demand for arbitration within the two year statute of limitations, an Illinois court held that expert testimony was necessary to show that the defendant did not use the degree of skill used by other reputable lawyers in such cases.16 Legal v. Medical Malpractice The general practice of not requiring expert testimony in a legal malpractice action is contrary to the general procedure in medical malpractice actions. In the case of a negligence action against a physician, it is the general rule that expert testimony of other doctors is required to give the jury a basis for making a determination.'' Perhaps this unique treatment of legal malpractice results from the fact that the judge is qualified to act as an expert witness and render opinions as to the customary legal conduct, whereas he or she lacks such expertise in medical malpractice actions.18 However, the judge's personal opinion may not adequately describe the 13. Hughes v. Malone, 146 Ga. App. 341, 247 S.E.2d 107, 111 (1978). 14. 394 N.E.2d at 564. 15. 601 P.2d at 1279. 16. Brainerd v. Kates, 68 Ill. App. 3d 781, 386 N.E.2d 586 (1979); Kohler v. Woollen, 15 Ill. App. 3d 455,304 N.E.2d 677 (1973); see Annot., 17 A.L.R.3d 1442-1444 (1968). 17. Donch v. Kardos, 149 Conn. 196, 177 A.2d 801 (1962); Wade, The Attorney's Liability for Negligence, 12 VAND. L. REV. 755, 766 (1959). 18. 26 AM. U.L. REV., supra note 1, at 431.
296 The Journal of the Legal Profession appropriate standard of care required in a specialized area about which he or she is not completely familiar. Furthermore, this procedure of proof runs counter to the accepted views of the allocation of functions between judge and litigants and should not serve as a substitute for evidence presented by the parties.lb The first attempt to correct this apparent anomaly between legal and medical malpractice actions occurred in the case of Olson v. North.ao The Illinois Court of Appeals asserted that "the rules of evidence governing the trial of a case for malpractice against a law- yer are the same as those against a doctor or denti~t."~' The court not only held such testimony admissible but went on to reverse the jury verdict for the plaintiff because no expert testimony had been introduced showing that the defendant had failed to exercise the appropriate degree of care and skill.a4 Evidently, Olson v. North required the plaintiff to present expert testimony in order to establish a prima facie case of legal malpractice. In recent years, a perceptible trend has emerged with various courts adopting a rule similar to the Olson opinion. In Berman v. R~bin,~~ the Georgia appellate court concluded: In malpractice actions against attorneys, as is the case against other professionals, it is essential that competent evidence be presented as to the acceptability of particular conduct. Hence, except in clear and palpable cases (such as expiration of statute of limitations), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation which would constitute malpractice. Consistence demands a similar standard for attorneys and doctors?' In a malpractice action where the plaintiff claimed that expert testimony was not required, a California court declared that the issue of attorney negligence is similar to that involved in other professional negligence and generally requires expert testim~ny.~~ Likewise, federal courts have adopted a standard similar to the Olson 19. Id. 20. 276 Ill. App. 457, 475-477. 21. Id. 22. 26 AM. U.L. REV., supra note 1, at 432; 43 IND. L.J., supra note 1, at 780. 23. 138 Ca. App. 849, 227 S.E.2d 805 (1976). 24. Id. at 805-806. 25. See Wright v. Williams, 47 Cal. App. 3d 802, 121 Cal. Rptr. 194 (1975); Hill v. Okay Const. Co., 252 N.W.2d 107 (Minn. 1977); Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102, cert. denied, 83 N.M. 698, 496 P.2d 1094 (1972).
Expert Testimony in Malpractice 297 rule.ae Logically, the same standard should apply in legal and medical malpractice actions. Moreover, requiring the plaintiff to meet the burden of producing expert testimony treats legal malpractice like other types of professional negligence and reduces the likelihood that disgruntled clients will initiate ill-founded suits.p7 However, this standard should not be absolute. Where the attorney's negligence is patent, to the degree that a layman could detect it, then expert testimony should not be demanded.a8 Conclusion In most legal malpractice or negligence actions the majority of courts adhere to the general rule of admitting expert testimony but not requiring it. This general rule seems to be based on the notion that in most legal malpractice cases the defendant-attorney's failure to use due care is so obvious that a breach of duty can be recognized by any layman. However, in certain malpractice cases, involving highly complex and technical issues (e.g., rule against perpetuities, maritime claims, etc.), courts have tempered the rule and required expert testimony as an exception. In view of the increasingly complicated and specialized practice of law today, the better procedure would be to apply the exception as the rule. Generally, the plaintiff should be required to present expert testimony as to the proper standard of care exercised by the ordinary and competent lawyer in order to establish a prima facie case. Accordingly, an exception to the requirement of producing expert testimony would apply when the alleged negligence is so apparent that it can be inferred from common experience. By adopting a general rule requiring expert testimony the courts could remove the illogical disparity between legal and medical malpractice actions, thus placing them on a similar standard. Numerous recent decisions seem to indicate a trend in this direction. Marvin Franklin - - - 26. Dorf v. Relles, 355 F.2d 488 (7th Cir. 1966). 27. Lipscomb v. Krause, 87 Cal. App.3d 970, 151 Cal. Rptr. 465 (1978). 28. IND. L.J., supra note 1, at 780-781.