Expert testimony may not be required in cases in which the attorney's negligence is clear, palpable, and so obvious that that the trier can find negligence as a matter of common knowledge, such as failure to meet a statute of limitations. See, e.g., McGrath v. Everest Nat'l Ins. Co., 668 F. Supp. 2d 1085, 1116–17 (N.D. Ind. 2009) (failure to file responsive pleading); Joos v. Auto-Owners Ins. Co., 288 N.W.2d 443 (Mich. Ct. App. 1979) (failure to communicate settlement offer). Except in those limited circumstances, however, expert testimony is generally required to establish the second element—the standard of care and the breach of that standard. Hickey v. Scott, 796 F. Supp. 2d 1, 3 (D.D.C. 2011). Expert testimony is necessary because a jury is not expected to know the parameters of proper legal representation and whether the attorney's conduct breached the standard of care. Leibel, 728 S.E.2d at 556. Accordingly, the testimony of a legal expert, relying on his or her legal experience, knowledge, and skill, is needed to assist the trier of fact in determining whether or not a defendant attorney acted negligently. Whitley v. Chamouris, 574 S.E.2d 251, 252–53 (Va. 2003).
Causation: The Case Within a Case
Proving negligence, however, is not the same as proving that an attorney's negligence caused the plaintiff's injury. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). And while expert testimony is generally proper, if not necessary, to establish an attorney's negligence, the use of expert testimony to establish proximate causation can be problematic.
The plaintiff in a legal malpractice case must establish that the attorney's alleged negligence was the proximate cause of the plaintiff's injuries. In the majority of jurisdictions, this showing requires that a plaintiff prove that, but for the attorney's negligence, the result of the underlying matter would have been more favorable. See, e.g., Steward v. Goetz, 945 S.W.2d 520, 532 (Mo. Ct. App. E.D. 1997); Hickey, 796 F. Supp. 2d at 4. This aspect of the action is commonly known as the "case within a case" or "suit within a suit." To satisfy this requirement, the plaintiff must put on evidence as if it were trying its original claim in order to show that it would have succeeded in the underlying proceeding were it not for the attorney's negligence. Whitley, 574 S.E.2d at 252–53. If the evidence establishes that the plaintiff would not have been successful because of another defense or dispositive issue, there is no actionable claim for legal malpractice, even if the attorney acted negligently.
Depending on the circumstances of the underlying matter, courts in some jurisdictions have required expert testimony to show a causal link between the attorney's negligence and the plaintiff's injury. See, e.g., Alexander, 146 SW.3d at 119–20 (when negligence relates to a matter of judgment such as choosing what evidence to present in the underlying proceeding, expert testimony is usually necessary); Froom v. Perel, 872 A.2d 1067, 1077–79 (N.J. Super. Ct. App. Div. 2005) (to show proximate causation for negligence in a transactional matter, the plaintiff was required to present expert testimony to show that a real estate deal could have been structured to give the plaintiff a greater ownership interest).
However, it appears that most courts limit legal expert testimony on matters of proximate causation because such opinion testimony either invades the province of the court on a question of law or invades the province of the jury by substituting the expert's opinion as to what the ultimate result would have been for that of the jury. See, e.g., Whitley, 574 S.E.2d at 252–53; Hickey, 796 F. Supp. 2d at 4. Therefore, in cases in which causation turns on proof of what would have happened in the underlying case, the court should instruct the jury on the legal aspects of the case, and then leave it for the jury to decide, based on the law, what a reasonable fact finder would have concluded if the attorney had not been negligent. See Hickey, 796 F. Supp. 2d at 5. In such cases, counsel should perform a careful analysis of the the legal and factual elements at issue and determine whether a legal expert's opinion improperly encroaches on either realm.
Testimony That Invades the Province of the Judge
An expert's opinion as to issues of law is not admissible. Grogan v. Taylor, 877 P.2d 1374, 1384 (Colo. App. Div. 1 1993) (expert testimony as to what the law is invades the province of the court as the "giver of law" and can confuse the jury); Dow Chem. Co. v. Ogletree, Deakins, Nash Smoak & Stewart, 237 Ga. App. 27 (Ga. Ct. App. 1999) ("A matter of law is not the subject, or a proper subject, of expert testimony."). Yet, because proof that the plaintiff would have been successful in the underlying action frequently involves questions of law, legal expert testimony is sometimes improperly offered to establish "what the law is."
For example, in Hickey, the U.S. District Court for the District of Columbia refused to permit expert opinion testimony regarding whether an attorney satisfied certain legal criteria for an award of so-called Laffey rates for attorney fees in an employment discrimination case. 796 F. Supp. 2d at 3. The court acknowledged that the client's legal expert could offer testimony as to why the attorney's failure to petition for Laffey rates constituted a breach of the standard of care. However, the court did not permit the same expert to testify whether or not the attorney had met the "legal criteria" for an award of Laffey rates. The court held that the legal criteria for such an award was a matter of law for the court. Therefore, the client's expert could not offer testimony describing the circumstances under which an attorney is eligible for Laffey rates. Id.
In another case, Hacker v. Holland, 570 N.E.2d 951 (Ind. Ct. App. 1st Dist. 1991), an appellate court held that it was reversible error for a trial court to permit a former judge to testify that the plaintiff had not suffered any damage because Indiana law required the plaintiff to first exhaust other avenues of remedy before she could maintain a legal malpractice suit against her attorney. The appellate court noted that not only was such testimony improper because it was nothing more than the expert's interpretation of the law, but it was also a misstatement of the law. Id. at 953–54.
Similarly, when the ultimate result in the underlying case hinges on an issue of law, the question is one for the court to decide. In Dow Chemical, the plaintiff sued its former law firm for malpractice stemming from its failure to timely appeal an adverse jury verdict. 237 Ga. App. at 30. The trial court granted partial summary judgment in favor of the law firm. On appeal, the plaintiff argued that the trial court erred by refusing to allow the plaintiff to present the expert opinion testimony of a former U.S. district court judge that an appeal to the Eleventh Circuit would have likely won a reversal of the punitive damages award against the plaintiff. The appellate court held that the trial court did not err in excluding expert testimony regarding the probable outcome of an appeal. "The question of whether an appeal would have been successful is a question of law, exclusively within the province of judges." Id.; see also Charles Reinhard Co. v. Winiemko, 513 N.W.2d 773 (Mich. 1994) (because appeals generally turn on issues of law rather than fact, issue of proximate cause in cases arising from negligent failure to appeal is an issue of law that must be decided by a judge).
Recently, a federal district court in the Eastern District of Missouri rejected a plaintiff's attempt to use legal expert opinion testimony to turn a question of law into fact. CentiMark Corp. v. Christofferson, 2013 WL 328562, at *11–12 (E.D. Mo. Jan. 29, 2013). The plaintiff claimed, in part, that its attorneys in an underlying lawsuit negligently failed to adduce certain evidence regarding the interpretation of a contract. In the legal malpractice action, the plaintiff's legal expert opined that the trial court in the underlying litigation would not have granted partial summary judgment against the plaintiff had the defendant attorneys presented additional evidence to the judge. However, the district court refused to consider the expert's opinion because the underlying summary judgment order was based on an issue of law—that the underlying contract was unambiguous. Accordingly, the expert's opinion about how any additional evidence would have affected that ruling was inadmissible as an improper legal opinion.
Testimony That Invades the Province of the Jury
Typically, the issue of proximate causation is a question of fact for a jury to decide, even if the original proceeding was not tried to a jury. See, e.g., Hickey, 796 F. Supp. 2d at 4; Chocktoot v. Smith, 571 P.2d 1255 (Or. 1977). Just as courts have found that an expert's testimony as to the status of the law invades the province of the court, many jurisdictions have held that it is improper for a legal expert to provide opinion testimony as to what the ultimate outcome would have been in the underlying proceeding because such opinion testimony impermissibly invades the province of the jury as the ultimate fact finder. See Leibel v. Johnson, 728 S.E.2d 554 (Ga. 2012); Hickey, 796 F. Supp. 2d at 4; Rubens v. Mason, 387 F.3d 183, 191 (2d. Cir. 2004) (affidavit from an expert as to what should have happened in the underlying proceeding is more prejudicial than probative because it would displace the jury as the fact finder in the malpractice action);Whitley v. Chamouris, 574 S.E.2d 251, 252–53 (Va. 2003). It should be noted, however, that some jurisdictions have permitted an expert to testify as to what the ultimate result would have been, even when applying the case-within-a-case analysis. See, e.g., Alexander v. Turtur & Assocs., Inc., 146 SW.3d 113, 119–20 (Tex. 2004).
In the jurisdictions that do not permit expert testimony, the standard for determining what the result "would have been" if the underlying case had been properly presented is an objective one—what a reasonable fact finder would have decided if the case had been tried differently. See Leibel, 728 S.E.2dat 556; Hickey, 796 F. Supp. 2d at 4. The jury's task in a legal malpractice action is not to determine what the actual fact finder in the underlying action would have decided. Instead, the jury independently evaluates the evidence in the underlying case as it should have been presented and substitutes its own judgment for that of the fact finder in the underlying action to determine whether the plaintiff has a winning case. See Leibel, 728 S.E.2d at 556; Hickey, 796 F. Supp. 2d at 6 (refusing to allow experts to opine on whether a reasonable administrative law judge would have awarded attorney fees in underlying matter and in what amount).
Simply because legal malpractice cases usually require expert testimony to establish the standard of care and the attorney's breach of that standard does not mean that legal expert testimony is proper in every case or for every issue in a case. When analyzing the issue of proximate cause and the case-within-a-case showing, counsel should carefully analyze the determinative issues in the underlying litigation and the relevant law of the jurisdiction regarding the proper scope of expert testimony in order to be prepared to object when the opposing party's expert offers and opinion that usurps the court's function to determine the applicable law or the jury's function as the ultimate fact finder.
Keywords: litigation, commercial, business, legal malpractice, proximate cause, negligence, standard of care, fact finder, expert testimony, underlying matter, province of the jury, province of the judge