We often write in this space about the required elements of a legal malpractice claim. Broadly, in an attorney-client relationship, the lawyer has a reasonable duty of care in the representation of the client. If legal counsel negligently breaches their duty of care and thereby harms the client, the client may have a valid legal claim for legal malpractice against the attorney.
The reasonable duty of care
Meeting the reasonable duty of care toward a client does not require superior services or perfect delivery. A lawyer must discharge their duty of care toward a client according to the ordinary, reasonable standards of a competent attorney practicing in that particular area of law and performing the tasks required to complete the requested services. The applicable duty of care is reflected in the lawyer’s skill, knowledge and diligence.
Role of the legal expert
In a legal negligence case, it is not always possible to articulate just what the reasonable duty of care is – it can require that the malpractice lawyer conduct legal research and, often, consult with a legal expert who is another attorney or sometimes a retired judge or professor of law. The need for expert analysis and input increases with the complexity or subject matter of a case.
For example, if an attorney does not set up and keep current an adequate tickler or calendaring system, it is easy for even a layperson to understand the link between that negligent practice and the lawyer missing important meetings, hearings or deadlines that could harm their client.
A legal malpractice lawyer who seeks to understand the ordinary, reasonable duty of care in a complicated or unfamiliar area of law will almost certainly retain an expert. For example, legal specialists can analyze the duty of care in sophisticated practices. Did an attorney submit sufficient descriptions and drawings of an invention in a patent application? Did legal counsel adequately investigate whether there was an implied easement over a parcel of land before advising their client to purchase it? Did a litigator’s failure to object to certain evidence or testimony cause their client to have a less favorable outcome in a lawsuit?
Legal experts as witnesses in legal malpractice trials
When an attorney files a legal malpractice action against their client’s former lawyer or law firm, it is likely that the new lawyer will present the testimony of a legal expert to establish the duty of care that the previous lawyer should have met. The issues are similar in the courtroom concerning the choice of the expert as an advisor, discussed above – are they sufficiently qualified and knowledgeable in the area of law involved to know whether the previous lawyer failed to uphold their reasonable standard of care in representing the client?
The expert must be well prepared by becoming thoroughly familiar with the previous trial or past legal representation at issue. Through the legal expert’s testimony, the plaintiff (who is alleging legal malpractice) educates the courtroom about the area of law and explains to the judge and jury why the previous attorney failed to adhere to the duty of care of an ordinary, competent lawyer, thereby harming the client.
Requirements for presenting an expert witness in a legal malpractice case can vary some among jurisdictions. For example, in Florida, courts do not require the testimony of an expert when a lawyer’s negligence is so obvious that any juror could understand that they breached their duty of care, but in another state, an expert may always be a requirement.
A malpractice lawyer will be able to assist the client harmed in earlier representation to locate and collaborate with a legal expert who is qualified to provide solid, convincing testimony in support of the malpractice allegations.