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What Benefit Does an Expert Bring to a Legal Malpractice Claim?


Normally, proving a legal malpractice claim requires the use of expert testimony. The expert (usually another attorney) testifies to establish the applicable standard of care and also gives an opinion about the defendant attorney’s breach of, or failure to meet, that standard.

Experts in legal malpractice cases are ordinarily experienced attorneys (or, sometimes, retired judges) who have practiced: (a) the area(s) of law which gave rise to the underlying claims upon which the malpractice claim is based, (b) bringing or defending legal malpractice claims, or (c) some combination of the two.

In some malpractice cases, multiple experts are required.

Expert testimony cannot contradict the applicable legal and ethical rules. Where laws (or ethical rules) apply to a lawyer’s conduct, the court will follow and enforce those rules, and should not follow or accept expert testimony that the rules should not apply.

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The judge will normally allow expert testimony regarding applicable standards of care whenever the case involves a specialized field of legal practice (for example, intellectual property law) and/or when the relevant standard of care is not “common knowledge.” In other words, expert testimony will be required if only a person with specialized knowledge of the issues can determine (with reasonable certainty) whether or not the defendant attorney behaved appropriately or breached the standard of care to the plaintiff client.

Although many people may believe that judging “appropriate” standards of care should be simple, and a matter of common sense, this isn’t always the case with legal malpractice. Facts and circumstances play a role in the legal analysis, as does an understanding of the voluminous case law, and legal rules, applicable to attorney conduct. A client may find an attorney’s behavior frustrating, dissatisfying, or even unpleasant–but that doesn’t necessarily mean that the client has a claim for legal malpractice.

Where the relevant standard of careis not a matter of common knowledge, courts generally consider expert testimony conclusive proof of the standard which should apply to the relevant case.  This means the court will accept the experts judgment with regard to prevailing standards of skill, knowledge, and behavior in the relevant geographical and practice area. Where more than one expert testifies, and the experts’ opinions differ, the court will make a decision about which expert’s testimony is most reasonable and persuasive.


No expert testimony is needed if the attorney’s behavior is “so clearly contrary to established standards that [a jury or judge] may find professional negligence [without it].” (Day v. Rosenthal, 170 CA3d at 1146-47.) If the lawyer’s conduct involved repeated, blatant, egregious breaches of duty, or otherwise makes the malpractice liability clear beyond any doubt–or in cases where even non-lawyers can understand that a lawyer breached his or her duty to a client “as a matter of law”–no expert testimony is required.

However, cases where liability is this clear-cut are far less common than those in which an expert is required. As mentioned above, establishing the duty an attorney owes to a client under the fact-specific circumstances of the client’s individual case or issue usually will require the help of an expert.

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Also: just because an expert is not required doesn’t mean the case should proceed without one. A plaintiff may always introduce expert testimony to help establish a legal malpractice claim. An experienced malpractice attorney can tell you whether or not an expert is necessary, helpful, or advisable in your case.

If you believe you have a case for legal malpractice, consult an experienced malpractice attorney immediately. Do not depend on this or any other online article (or other written source) to evaluate your rights, and do not attempt to pursue the claim on your own. Your rights may be lost if you delay, so get experienced counsel as soon as possible.


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