Day on Torts - New Post: Expert proof needed on standard of care in legal malpractice case.

Expert proof needed on standard of care in legal malpractice case.

Posted: 07 Jul 2020 05:31 AM PDT

Where defendant attorneys presented expert proof consisting of their own affidavits and the affidavit of another attorney stating that they complied with the applicable standard of care in their previous representation of plaintiff, the testimony of plaintiff and another witness, neither of whom were attorneys, was not enough to defeat summary judgment in a legal malpractice case.

In Hobson v. Frank, No. M2019-01556-COA-R3-CV (Tenn. Ct. App. June 4, 2020), plaintiff filed a pro se legal malpractice case against the two attorneys who had previously represented her in a “federal failure to hire case.” In her federal case, plaintiff had claimed that the Department of Defense committed racial discrimination by not hiring her. She originally filed that case pro se, but defendants were appointed to be her trial counsel. Defendants worked on the case for around seven months and “filed several motions in limine, frequently communicated with Plaintiff…, participated in several pre-trial conferences, reviewed thousands of pages of discovery…, and litigated the three-day jury trial.” Defendants and their staff worked around 700 hours on the case and were not paid for their representation of plaintiff, but the jury returned a verdict for the defendant.

The day after the jury verdict, plaintiff emailed defendants to tell them “they were no longer her official attorneys of record.” She eventually filed this legal malpractice suit based on defendants alleged negligence in the federal case.

Defendants filed a motion for summary judgment, attaching both of their affidavits stating that “they exercised the necessary standard of care at all times while representing plaintiff.” They also filed the affidavit of another attorney as an expert witness, who also opined that defendants complied with the standard of care. In response to this motion, plaintiff submitted three of her own affidavits, as well as an affidavit from an individual who was a witness in the federal case but was not an attorney. The trial court granted the motion for summary judgment, and the Court of Appeals affirmed.

A plaintiff seeking to hold a lawyer liable for legal malpractice must show that he or she breached the duty owed to the plaintiff.

To determine if an attorney breached the duty owed to a client, courts ask whether the lawyer failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by other attorneys practicing in the same jurisdiction. …[E]xcept in cases involving clear and palpable negligence, expert proof is required to show an attorney’s actions fell below the standard commonly possessed and exercised by other practicing attorneys.

(internal citations and quotations omitted).

Here, the Court of Appeals held that this was not a case of “clear and palpable” negligence, so expert proof was required. Defendants submitted the affidavits of three attorneys (including themselves) stating that defendants “met or exceeded the standard of care.” Plaintiff responded only with affidavits from herself and a witness from the prior case, neither of whom were lawyers. The Court explained that “[d]espite their familiarity with the facts of this case, neither [the other witness] nor Plaintiff is an ‘expert’ for the purposes of establishing the required standard of care.” Because defendants negated an essential element of plaintiff’s case and plaintiff failed to respond with the necessary expert proof, summary judgment was affirmed.

NOTE: This opinion was published three months after the case was assigned on briefs.