Using Legal Malpractice Experts

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.

Legal malpractice experts are generally two types: litigation and specialists. The litigation expert provides the trier of fact the legal procedure and strategy. The specialist expert is the jury’s teacher of the specific area of law that is involved in the underlying action (e.g.: bankruptcy). The expert must lay the foundation for the jurors to be able to understand the language of the law, and the reason why actions must be taken or avoided. Typically, the legal malpractice expert cannot express an opinion of how the underlying case would likely have been decided.