Posted On: January 22, 2013 by Karen Olson

Legal Ethics Expert Witness On Ohio Law Requiring Expert Testimony

In Ohio Appellate Court finds expert testimony on legal malpractice required, legal ethics expert witness James King writes:
In a legal malpractice matter, an Ohio state appellate court affirmed a trial court ruling granting summary judgment to defendant attorneys on the basis that plaintiff failed to present expert testimony establishing that defendants failed to exercise “the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession.” McWilliams v. Schumacher, 2013-Ohio-29, 2013 WL 118918 at *6. The court cited to Ohio law requiring expert testimony demonstrating the attorney’s breach of his standard of care, in all cases except where the breach of care was ‘obvious’:

“[I]t is well settled in Ohio that in order to prevail on a legal malpractice claim a plaintiff must demonstrate, through expert testimony, by a preponderance of the evidence, that the representation of the attorney failed to meet the prevailing standard of care, and that the failure proximately caused damage or loss to the client. Zafirau v. Yelsky, 8th Dist. No. 89860, 2008–Ohio–1936, ¶ 27. Further, “the Supreme Court made it clear that there must be a causal connection between the lawyer's failure to perform and the resulting damage or loss.” Jarrett v. Forbes, 8th Dist. No. 88867, 2007–Ohio–5072, ¶ 19, explaining Vahila v. Hall, 77 Ohio St.3d 421, 1997–Ohio–259, 674 N.E.2d 1164.

“Expert testimony is required to sustain a claim of legal malpractice, except where the alleged errors are so simple and obvious that it is not necessary for an expert's testimony to demonstrate the breach of the attorney's standard of care. Hirschberger v. Silverman, 80 Ohio App.3d 532, 538, 609 N.E.2d 1301 (6th Dist.1992); McInnis v. Hyatt Legal Clinics, 10 Ohio St .3d 112, 113, 461 N.E.2d 1295 (1984); Rice v. Johnson, 8th Dist. No. 63648, 1993 Ohio App. LEXIS 4109 (Aug. 26, 1993); Cross–Cireddu v. Rossi, 8th Dist. No. 77268, 2000 Ohio App. LEXIS 5480 (Nov. 22, 2000).”

McWilliams v. Schumacher, supra. In McWilliams, the plaintiff alleged that his former attorneys breached their duties by excluding him from settlement negotiations and handling the matter in a manner that did not meet professional standards. The appellate court upheld a trial court determination that, under these facts, the alleged act of malpractice was not obvious and required expert testimony to substantiate that malpractice had occurred.