7-1 Introduction

• Jurisdiction: United States

7-1 Introduction

Normally, expert testimony is required to prove or rebut an allegation of legal mal-practice.¹ This is because the fact finder is not familiar with the standard of care that Florida attorneys are expected to observe as they go about their work.² An expert, however, cannot invade the province of the jury. Thus, he or she cannot testify as to whether an attorney-client relationship existed, the attorney breached a legal duty of care, or the attorney committed legal malpractice.³

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Notes:

^[1] Only a lawyer can serve as an expert witness on a lawyer's standard of care. U.S. Specialty Ins. Co. v. Burd, 478 F. App'x 653 (11th Cir. 2012); Goldman v. Bracewell & Patterson, L.L.P., 2005 WL 5740234 (M.D. Fla.), report and recommendation adopted, 2005 WL 2483339 (M.D. Fla. 2005). However, a non-lawyer claims adjuster can serve as an expert witness on the handling and processing of legal malpractice insurance claims. Geico Cas. Co. v. Beauford, 2007 WL 2412974 (M.D. Fla. 2007). For what must be in a legal malpractice expert's report, see Coral Way, LLC v. Jones, 2006 WL 6872095 (S.D. Fla. 2006). The opinions of legal malpractice experts are subject to challenge on the same grounds as other experts. See Leviter v. Bodzin, 2015 WL 10606914 (Fla. 17th Cir. Ct. 2015).

^[2] The standard of care normally applicable in a l egal malpractice case is that observed by reasonably prudent lawyers in similar circumstances. But see Gleason v. Title Guar. Co., 300 F.2d 813, 814 (5th Cir. 1962), reh'g denied, 317 F.2d 56 (5th Cir. 1963) ("While custom provides an important indication of what constitutes reasonable care and what is negligent . . . [a]ll customs are not good customs. . . ."). Whether lawyers who are board-certified can be held to a higher standard than lawyers who lack such credentials is an open question in Florida. The ethics rules do state that a lawyer seeking board re-certification cannot be turned down solely because of a pending malpractice action. See R. Regulating Fla. B. 6-3.6(b)(4).

^[3] Southern Gardens Citrus Processing Corp. v. Barnes Richardson & Colburn, 2013 WL 5928676 (M.D. Fla. 2013). See also Robinson v. Kates, 895 So. 2d 1156 (Fla. 4th Dist. Ct. App. 2005) (expert cannot testify as to what the law is on a particular subject).

Because of their importance, courts are reluctant to find that a party has waived having an expert...