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When does a legal malpractice case demand expert testimony?

When an attorney fails to represent a client with reasonable care, loyalty and skill, that attorney may commit legal malpractice. But proving legal malpractice can be tricky. The definition of what is “reasonable” for an attorney to do often hinges on uncommon knowledge.

It’s relatively easy to show when an attorney has stolen from a client, settled a case without first consulting the client or concealed a conflict of interest. It can be harder to prove that an attorney acted incompetently. This often requires showing how the attorney failed to account for some relevant point of the law he or she should have understood. Such proof often requires expert witnesses, and those who pursue legal malpractice cases without the support of expert testimony may well be wasting their time.

How not to pursue your legal malpractice case

The United States Court of Appeals for the Ninth Circuit recently dismissed the legal malpractice suit filed by a group of airline attendants. They had claimed their attorney had mishandled their mass tort case, but the district court said they didn’t offer enough proof to move forward. Instead, the court offered a summary judgment against them. In its review of the case, the Ninth Circuit upheld the judgment, dropping the case before it even moved to oral arguments.

The appellate judges noted there are some cases in which expert testimony may not be needed, but they argued the airline attendant’s case did not meet those requirements. As one retired judge noted in an article for the Los Angeles Lawyer, courts presume that legal malpractice cases need expert testimony in all but rare cases. Those cases involve actions that:

  • Reveal negligence so clearly that a trier of fact does not need expert insight
  • Don’t depend on detailed knowledge of a specific area of law
  • Involve actions that clearly violate the standards of professional conduct

Except in these—or similar—circumstances, people want expert witnesses to support their arguments. Failing to strengthen your argument with expert testimony is a good way to lose your case before the court even hears it.

How can you pursue your case more effectively?

The recent news about the airline attendants’ case goes to show how tricky legal malpractice can be. To win a malpractice case, you need to do more than show that your attorney wronged you. You need to connect his or her failures to the result of your case, show they caused damages and prove you would have had a better result if not for your attorney’s negligence or bad behavior.

This requires an understanding of both the underlying case and the rules for legal malpractice. With so many layers, it’s easy for inexperienced attorneys to miss key details. It’s not clear if this is what happened in the airline attendants’ case, but if you have a legal malpractice case, you want to make sure you don’t make the same mistake.