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Practice Pointers for Experts in Legal Malpractice Cases

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Legal Professional Liability Newsletter, 1st Quarter 2018
February 2018

Let’s face it – attorneys within the plaintiffs’ bar are not clamoring to be known as experts with respect to plaintiff legal malpractice claims. No one wants to be known as the lawyer who sues lawyers (with a few exceptions of course). As such, often times legal malpractice cases are either litigated by pro se parties, or practitioners who are not experienced in litigating legal malpractice cases. Because this area of law has some tricky technical components, such as the proper use of expert testimony, it is a breeding ground for missteps by unwary adversaries. Below, we will briefly examine some tips that can be utilized in the context of legal malpractice claims when the opposition is unskilled with respect to expert practice in these cases.

As an initial matter, Ohio courts have consistently held that expert testimony is critical in legal malpractice cases to establish the failure to exercise the knowledge, skill and ability ordinarily exercised by members of the legal profession similarly situated.  Modesty v. Michael H. Peterson & Assocs. 8th Dist. No. 85653, 2005 WL 3030995, at * 7 (Nov. 10, 2005).  “It is elementary that, except in unusual circumstances, an action in legal malpractice may not be maintained without expert testimony that supports the plaintiff's theory that his attorney failed to exercise the standard of care ordinarily exercised by attorneys in handling the matter in question.”  Id.; see also Niepsuj v. Doe, 9th Dist. No. 27594, 2015-Ohio-3864, ¶ 16 (citing McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984) (holding that “[g]enerally, expert testimony would be required in regard to professional standards of performance.”)); Goldberg v. Mitmann, 10th Dist. No. 07AP-304, 2007-Ohio-6599 (holding that “[e]xpert testimony is required so that the trier of fact does not have to speculate on the standard of care, particularly in a complex case * * * which [is] normally not within the realm of understanding of the layman”).

Accordingly, if the defendant files a motion for summary judgment based on his or her own opinion that he or she complied with the standard of care, an expert affidavit is typically required to defeat the motion.  If the plaintiff does not present expert testimony when it is required, the defendant lawyer may be entitled to summary judgment or a directed verdict.  Friedland v. Djukic, 191 Ohio App.3d 278, 287, 2010-Ohio-5777, 945 N.E.2d 1095, ¶ 27 (citing Martin v. Daidsman, 8th Dist. No. 77030, 2000 Ohio App. LEXIS 3843 (Aug 24, 2000)); Philips v. Courtney, 8th Dist. No. 84232, 2004-Ohio-6015, ¶ 15; Harrell v. Crystal, 81 Ohio App.3d 515, 525, 611 N.E.2d 908 (8th Dist.1992); Gibbons v. Price, 33 Ohio App.3d 4, 514 N.E.2d 127 (8th Dist.1986).[1]

Often times, in order to overcome a motion for summary judgment, the plaintiff will present an expert’s affidavit that simply opines that the defendant attorney failed to comply with the applicable standard of care. However, what if the expert’s affidavit in opposition is silent with respect to the critical element of proximate cause? As a general proposition, an expert affidavit in support of a non-movant for denial of summary judgment must establish that there is a genuine issue of material fact for trial. See 3 ATLA’s Litigating Tort Cases §31:13, Affidavits – Expert’s Affidavits. Similarly, a conclusory expert affidavit cannot provide the basis upon which to deny a duly supported motion for summary judgment.  Id.  In keeping with this proposition, Ohio courts have generally held that an expert’s affidavit which does not provide a basis for the expert’s opinion regarding causation or “does not provide competent evidence as to causation” is insufficient to overcome summary judgment.  See, e.g., Stamper v. Middletown Hospital Assn., 65 Ohio App.3d 65, 69, 582 N.E.2d 1040 (12th Dist.1989).

These principles have been tested in the context of legal malpractice as well. For example, in Katz v. Fusco, 10th Dist. Franklin No. 97APE06-847, 1997 WL 770962 (Dec. 9, 1997), the plaintiff appealed the grant of summary judgment in favor of his former attorney on his legal malpractice claims. The plaintiff offered an expert affidavit “in an effort to demonstrate that a genuine issue of material fact existed as to whether or not the appellee’s representation met the required standard of care.”  Id. at *4.  The plaintiff’s expert affidavit in Katz suffered a fatal deficiency with regard to the proximate cause element of the plaintiff’s claim:

“Even if this court were to consider Attorney Rakestraw’s affidavit, it should be noted that the affidavit merely states that the attorneys representing appellant in the underlying action did not meet the standard of care. The affidavit does not state why Attorney Rakestraw believes that the standard of care was not met, nor does it state that the failure to assert [the plaintiff’s claims] caused appellant to suffer damages in any way…nor does it address a causal connection between the conduct complained of and/or the resulting damage or loss.”

Id. (emphasis added).  As such, the court determined that the expert’s affidavit failed to create a genuine issue of material fact on the crucial third element of Vahila: that the defendant’s actions proximately caused damages to the plaintiff.  Id.

As such, it very well may be that an expert’s affidavit which simply concludes that the defendant-attorney violated the standard of care is insufficient to overcome summary judgment.  The breach of a duty, standing alone, does not create a genuine issue of fact on each of the critical elements of legal malpractice.  In keeping with this logic, multiple Ohio courts have determined that an expert’s affidavit, which fails to establish the proximate cause and damages elements of the plaintiff’s legal malpractice claim, is insufficient to withstand a motion for summary judgment.  See Nu-Trend Homes, Inc. v. Law Office of Delibera, Lyons & Bibbo, 10th Dist. Franklin No. 01AP-1137, 2003-Ohio-1633, at ¶ 35 (“Expert testimony is normally necessary to establish both that the attorney accused of malpractice has failed to conform with the standard required by law and that the attorney’s conduct was the proximate cause of the damage or loss claimed as the basis for redress by the complaining party.”) (emphasis added); see also Lytle v. McClain, 9th Dist. Lorain No. 03CA008400, 2004-Ohio-4572 (holding expert affidavit in legal malpractice case which fails to establish a causal connection between defendant’s performance and plaintiff’s damages insufficient to overcome summary judgment).

That said, there is authority that has gone in the other direction on this issue. For example, in Wayside Body Shop, Inc. v. Slaton, 2nd Dist. No. 25219, 2013-Ohio-511, at ¶30, the Second District collected cases and noted a split in authority relative to the necessity of expert testimony on the issue of causation. See, e.g., Bloomberg v. Kronenberg, U.S. Dist. Ct. No. 1:06-CV-0733, 2006 U.S. Dist. LEXIS 83398, 2006 WL 3337467, *5 (N.D. Ohio 2006) (“[T]he Court rejects the Defendant’s argument that Ohio law requires proximate cause be established only through expert testimony [in legal-malpractice cases.] * * * At best, * * * in some instances expert testimony regarding proximate cause may be necessary.”); Montgomery v. Gooding, Huffman, Kelly & Becker, 163 F.Supp.2d 831, 837 (N.D.Ohio 2001) (“* * * Ohio law does not require expert witness evidence to establish proximate cause in legal malpractice actions.”); Morris v. Morris, 9th Dist. Summit No. 21350, 2003 Ohio 3510, ¶19 (“However, it appears that an expert is not required to prove the third prong of a legal malpractice claim, or proximate cause.”); Compare Yates v. Brown, 185 Ohio App.3d 742, 2010 Ohio 35, 925 N.E.2d 669, ¶24 (9th Dist.) (finding expert testimony necessary “[w]hen multiple attorneys were involved in the underlying representation, and when the plaintiffs have alleged negligent representation by more than one attorney” and reasoning that “expert testimony would be critical under these circumstances to determining causation and either parsing or eliminating liability”); and Van Sommeren v. Gibson, 6th Dist. No. L-12-1144, 2013-Ohio-2602, at ¶32 (noting that in certain circumstances, including the circumstances of that case involving an alleged conflict of interest, expert testimony may be required to establish causation in legal malpractice cases).  

Although there may be authority on either side of this issue, it would be wise in any malpractice action to challenge an expert affidavit or opinion that does not address proximate cause. Good litigators for the opposition will either voluntarily dismiss the case to cure the error or seek an extension of time to supplement the affidavit. Or, they may argue that causation is within the province of a lay jury such that expert testimony is not required, as many pro se malpractice litigants often argue. Regardless of the response, the proximate cause argument is a useful tool. It will either force the opposition to burn their Civ. R. 41(A) dismissal without prejudice to cure the error, or may be a tool to obtain settlement leverage in an upcoming mediation. The bottom line is that nearly all legal malpractice defenses should include a summary judgment challenge on the issues of the standard of care and proximate cause. If the opposition’s expert is silent as to the element of proximate cause, the above argument is a useful tool.

[1] However, there are two circumstances, narrowly applied by Ohio courts, when expert testimony is not required.  A client need not produce expert testimony if:  (1) the attorney’s error is so obvious that it is within the understanding of a lay person; or (2) the judge may determine the error as a matter of law.  McInnis v. Hyatt Legal Clinics, 10 Ohio St.3d 112, 113, 461 N.E.2d 1295 (1984); Werts v. Penn, 164 Ohio App.3d 505, 2005-Ohio-6532, 842 N.E.2d 1102 (2d Dist.).