7-3 Trial Proceedings

• Jurisdiction: United States

7-3 Trial Proceedings

7-3:1 Expert Testimony Required

The plaintiff in Warwick, Paul & Warwick v. Dotter⁹ sued his lawyers for failing to represent him at his divorce trial. The plaintiff was a seasonal worker and was in New Jersey at the time of the trial, unaware that it was taking place. The law firm "admitted that [it] had been employed, accepted employment as attorneys for John C. Dot-ter in the divorce action, and received notice of the trial, but no member thereof attended."¹⁰

In the malpractice proceeding, Simpson, the wife's attorney, was called as an expert by the client and asked whether "a more financially favorable divorce decree could have been obtained had not the firm been negligent."¹¹ On appeal, the law firm objected to Simpson's testimony. The Fourth District Court of Appeal found Simp-son's testimony sufficient to establish the appropriate standard of care and pointed out that with the exception of the trial judge, Simpson was "the most informed available person as to the facts and law involved in the divorce case."¹²

In Willage v. Law Offices of Wallace and Breslow, P.A.,¹³ the court held that legal malpractice could not be inferred from the mere fact that the client had lost a slip-and-fall case: "Without expert testimony, a lay jury could only speculate as to whether an attorney's conscious decision not to call a purported witness constituted negligence, where in the attorney's opinion, the witness on cross examination could have given testimony damaging to plaintiff's case."¹⁴

7-3:2 Expert Testimony Not Required

Certain kinds of legal malpractice are so clear that expert testimony is not mandatory. The client in Suritz v. Kelner¹⁵ suffered a dismissal of his suit due to his attorney's failure to tell him to respond to interrogatories. The court wrote in part, "In the instant case, if the jury finds the facts to be as presented by the plaintiff, the negligence of the attorney may appear from these facts without the need of expert testimony."¹⁶

Suritz was distinguished in Evans v. McDonald¹⁷ because in that case the duty owed and the applicable standard of care were not common knowledge. The Evans court upheld summary judgment in favor of the lawyer due to the former client's failure to proffer expert testimony regarding how taking title to properties in a probate case would affect his divorce case.¹⁸

Suritz and Evans were cited with approval in Adam Jeffrey Katz, P.A. v. Jerome,¹⁹ which affirmed a lower court's decision without discussing the case's facts.²⁰

Galloway v. Law Offices of Merkle, Bright and Sullivan, P.A.²¹ involved both an affidavit and the need for expert testimony. A summary judgment in favor of the attorney was obtained based on the attorney's unrebutted affidavit. Such affidavit "merely stated that appellant's file was handled in accordance with the community standard of care, but the affidavit nowhere attempts to explain why this case was not filed within the statute of limitations as alleged in the complaint."²² The summary judgment was reversed on a finding that a counter-affidavit was not necessary: "[W]e think the unexplained failure to file within a statute of limitations as described in this complaint is such an apparent breach of a duty of care as to obviate the need for expert testimony from appellant on a motion for summary judgment."²³

Whether there was sufficient expert testimony to satisfy the proximate cause element of a legal malpractice case was the issue in Tarleton v. Arnstein & Lehr.²⁴ In the underlying divorce action, the wife was advised that she would be able to sue on various promissory notes after the divorce despite a release clause in the divorce settlement agreement.

When the wife later discovered that the release clause prevented her from suing on the promissory notes, she sued her divorce lawyer for malpractice. During the trial she presented expert testimony on the appropriate standard of care and the amount due under the promissory notes. Her standard of...