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Use of Expert Testimony to Establish a Lawyer’s Malpractice

WHEN IS EXPERT TESTIMONY NOT REQUIRED IN LEGAL MALPRACTICE ACTIONS?

Legal malpractice lawsuits often involve expert testimony (often offered by attorney-experts) to establish the defendant lawyer’s breach of a duty to the plaintiff.

Where the breach of duty is “clearly established” to a degree that no reasonable person could conclude the attorney was not negligent, expert testimony is generally not required. However, this requires proof of attorney conduct that violates the accepted standards so clearly that even “reasonable minds” cannot differ.

WHEN IS EXPERT TESTIMONY ADMISSIBLE IN LEGAL MALPRACTICE ACTIONS?

Expert testimony is often used to establish or explain a standard of care or behavior that applies to a specialized legal field. Expert testimony also proves useful when the relevant standard of attorney conduct (the “duty” owed to the client) is not common knowledge. In these cases, an expert can testify to the relevant standards and to whether or not the defendant’s actions met–or failed to meet-those standards.

However, expert testimony cannot change or contradict the established standards for attorney conduct. For example, an expert cannot contradict the California Rules of Professional Conduct.

WHAT EFFECT DOES EXPERT TESTIMONY HAVE IN A LEGAL MALPRACTICE ACTION?

While the actual effect of any given expert on a judge or jury may vary depending on the expert’s qualifications, testimony, and familiarity with the subject matter, the role of expert testimony within the trial is easier to quantify.

In cases where the relevant standard of care involves examination of a specialty area or is not common knowledge, expert testimony can conclusively establish the relevant standard of care by which the defendant’s conduct should be measured.

Expert testimony may also be used to establish whether or not the defendant’s conduct actually violated the applicable standard–in other words, whether or not there was a breach of duty.

Additionally, expert testimony may be used to explain to the jury (or judge, in a bench trial) how the Rules of Professional Conduct apply, or do not apply, to the case at hand.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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