The use, or non-use as the case may be, of experts in legal malpractice litigation can be a valuable tool. Legal malpractice plaintiffs are constantly attempting to eek out every penny from the defendants while keeping costs at a minimum. One way of minimizing cost is by attempting to “shoestring” the litigation by dispensing with expert testimony to prove their case. Plaintiffs traditionally argued that expert testimony was unnecessary given that the blatant nature of the error was within the province of a layperson, and that expert testimony was simply not required under Ohio law on the element of proximate cause. As such, if the defendant attorney failed to file a claim within the statute of limitations, for example, but the ability to prove damages were nevertheless suspect, Plaintiffs were formerly able to skate past the summary judgment stage without an expert. As will be examined below, based upon a recent 6th District decision, legal malpractice plaintiffs must be prepared to present expert testimony on both the standard of care element of their case, as well as proximate cause. It is no longer sufficient to state that the defendant-attorney blew the statute of limitations; the plaintiff must still offer an expert opinion that the error proximately caused damages.
In Van Sommeren v. Gibson, 6th Dist. No. L-12-1144, 2013-Ohio-2602, the plaintiff sued his former attorney for malpractice stemming from his representation of the plaintiff in a farm purchase transaction. It was alleged that the defendant-attorney had concurrently represented two clients with adverse financial interests, and due to this concurrent representation, the plaintiff was unable to secure the necessary financing to successfully run his farm. Exactly how the concurrent representation of the allegedly adverse clients prevented the plaintiff from acquiring financing, however, was the source of contention in the Sixth District litigation. As such, the court examined the issue of whether expert testimony was necessary on the element of proximate cause, even assuming a breach of the standard of care had occurred.
Noting that there were complex factual circumstances underlying the defendant’s representation of the plaintiff, which involved multiple entities and their relationships with each other, multiple agreements entered into by the plaintiff (some of which pre-dated his relationship with the defendant-attorney), and the plaintiff’s own uncertainty about the defendant’s role in the financing process, the court held that expert testimony was required to establish how the defendant’s alleged actions prevented the plaintiff from acquiring financing. The court held that the combination of complex facts, interlacing relationships of multiple parties, and multiple underlying transactions placed the establishment of proximate causation well-outside the province of the ordinary layperson. To find otherwise, according to the court, would invite rampant speculation on the part of the jury.
In sum, the court’s holding in Gibson is consistent with the Ohio Supreme Court’s holding in Environmental Network Corp. v. Goodman Weiss Miller, LLP, 119 Ohio St.3d 209, 2008-Ohio-3833, 893 N.E.2d 173, which requires more than just “some evidence” to proximately relate the attorney’s alleged error to the client’s damages. While not every case of legal malpractice will require an expert for causation, certain factual circumstances resulting from complex relationships or involving several transactions with multiple clients or attorneys may make such testimony necessary.
Moreover, the VanSommeren decision should be extended beyond merely complex real estate transactions. Plaintiffs traditionally assumed that a viable legal malpractice claim existed simply by virtue of a relatively obvious or admitted legal error. However, what is the value of a blown piece of litigation, for example, that had a very difficult prospect of success in the first instance? Plaintiffs should be put to the task in legal malpractice cases of proving not only that the attorney violated the standard of care, but also that an expert will testify as to the proximate cause of damages. After all, experts are expensive and pro se parties are generally unaware of the expert requirements. Practitioners should be prepared to utilize these critical litigation tools.
Should you have any questions regarding this decision, or any other questions regarding professional liability issues or defense, do not hesitate to contact one of the members of our Legal Professional Liability group.