In John P. Blumberg’s ( article “Legal-malpractice experts: Choosing, Using or Losing” in the October 2016 issue of The Advocate Magazine, he points out how crucial the legal malpractice expert witness is in reviewing the underlying case.

For example, in a circumstance where an attorney recommended a settlement to his client that may have been inadequate. Before the expert can testify about whether it was negligent to recommend such a settlement, the legal malpractice expert must be familiar with the facts of the underlying case.

In doing so, the author puts for such questions as: Was there liability (where the defendant failed to use reasonable care to prevent harms)? Were there probable damages (actual loss or harm)? Were there procedural issues that could affect the outcome of a trial? Mr. Blumberg suggests the expert must be able to testify about all of these factors of the underlying case that would have gone into a competent opinion by the defendant-attorney in recommending the settlement. He also advocates that the expert be retained early in the litigation so that the trial attorney can develop the facts to support the expert’s opinion.

Plaintiff filed an Americans with Disabilities Act (ADA) claim against his former employer.  Plaintiff and defendant both hired expert witnesses and both filed motions to exclude.  The court denied the motion to exclude the plaintiff’s expert and granted in part (taking other parts of the motion under advisement) the motion to exclude the defendant’s expert.

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