September 16, 2013 Articles

Expert Testimony and Proximate Cause in Legal Malpractice Cases

Counsel should carefully analyze the issues in the underlying litigation

by Michael A. Brockland

In perhaps no other type of case is there more potential for improper expert opinion testimony than in legal malpractice cases. These cases typically require the plaintiff to show that the plaintiff would have achieved a more favorable result in an underlying proceeding absent the negligence of the plaintiff's attorney. The temptation, then, is to simply have a legal expert offer an opinion as to what the result of the underlying proceeding would have been if the attorney had not been negligent. Such opinions, however, are often improper and inadmissible because they invade either the province of the judge on issues of law or the province of the jury as the ultimate fact finder in the case.

Legal Malpractice: The Basics
To prevail on a claim for legal malpractice, a plaintiff must prove (1) the existence of an attorney-client relationship; (2) negligence, i.e., a breach of the standard of care owed by the attorney to the client; and (3) that the attorney's negligence was the proximate cause of the plaintiff's injury. See Leibel v. Johnson, 728 S.E.2d 554 (Ga. 2012); Novich v. Husch & Eppenberger, 24 S.W.3d 734, 736 (Mo. Ct. App. E.D. 2000).

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