7-4 Working with Experts

• Jurisdiction: United States

7-4 Working with Experts

7-4:1 Hiring

Except for the fact that he or she is an attorney, a legal malpractice expert is no different from any other type of expert witness.³⁰ Ordinarily, the chosen legal malpractice expert will be an experienced attorney who practices in the same field as the defendant. Although helpful, certification in the area of law at issue in the malpractice case is not required. In addition to substantive credentials, impactful experts possess the ability to explain legal concepts to a jury in an understandable manner.

Frequently, a second expert is retained who has, in one way or another, demonstrated a strong familiarity with the ethics rules.³¹ This is especially true where the meaning or operation of a particular ethics rule is likely to be controverted. Oftentimes, law professors who teach legal ethics are retained for this purpose.

7-4:2 Fees

Like other expert witnesses, a legal malpractice expert may be paid "a reasonable, non[-]contingent fee for professional services."³² To document compliance with this rule, and to avoid future misunderstandings, it always is a good idea to enter into a signed retention agreement with the legal malpractice expert as soon as possible. The agreement should clearly and precisely spell out the expert's duties.³³

7-4:3 Confidentiality

In Goldman v. Bracewell & Patterson, L.L.P.,³⁴ the question arose whether an attorney named Richard M. Leisner could serve as the defendant's legal malpractice expert. Lawrence Phalin, the plaintiff's lawyer, insisted that he could not because, nearly a year before filing suit, Phalin had contacted Leisner and discussed the possibility of Leisner serving as the plaintiff's legal malpractice expert. Leisner initially claimed not to remember the conversation, but later found in his files seven pages of handwritten notes as well as a follow-up e-mail. Leisner insisted that these materials proved that no relationship had been formed and that he had not received any confidential information about the plaintiff's case. In agreeing with his position, the court explained:

From this record, it does not appear that Phalin and Leisner entered into a confidential relationship or that Phalin could have reasonably concluded that they did. More than the members of any other profession, attorneys are aware of the need to avoid blurting out confidential information to an individual who may already work for the other party in the law suit—or, more likely, whose law firm may already do so. It is extremely unlikely that two highly experienced attorneys simultaneously forgot this principle. Phalin's contention that he had to disclose confidential information to Leisner during their first conversation in order to evaluate him as a potential expert witness is not persuasive.
Goldman contends that the follow-up

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