Supreme Court to hear important legal malpractice case Tuesday, Jan 24, 2012

Hawkins Parnell Thackston & Young, LLP attorney Christine L. Mast will be arguing the appeal of Johnson v. Libel before the Supreme Court of Georgia. 

In Johnson, the claim was a typical “case within the case” legal malpractice claim.  Thus, the jury had to decide that the standard of care was breached, and also had to find that the case within the case – the underlying discrimination claim – was valid and what it’s value was. 

Christine L. Mast, Esq.

Under such circumstances, it is proper for the plaintiff to use an expert to opine that the attorney breached the standard of care and put up evidence that would be sufficient to allow the jury to rule in plaintiff’s favor in the underlying case.  During the legal malpractice trial (handled by a different law firm), the trial court allowed the expert to go even further.  Plaintiff’s expert was permitted to testify about the strength of the evidence in Plaintiff’s favor.  The expert was permitted to testify that certain witnesses were unbiased and commented on the evidence in several particulars.  The witness even opined on how the jury in the underling case would have ruled had it heard the evidence at a trial.  That same evidence, however, was presented to the jury in the legal malpractice trial, as it would have been in the underlying case.  This evidence was permitted under the guise of proximate cause. 

The Court of Appeals upheld the use of the evidence under the rationale that an expert may testify about the legal complexities of a legal malpractice case.  The Court did not address the fact that the underlying case would have been tried without a lawyer to testify about how they jury should rule on the same legal complexities.  Instead, the hypothetical jury of the underling case would have simply issued a verdict on the evidence and the Court’s instructions.  Christine Mast will urge the Supreme Court of Georgia to reverse the Court of Appeals and order a new trial with proper evidentiary instructions.

The appeal addresses the very scope and role of expert evidence in the standard case within a case legal malpractice claim. 

The confusion in the lower courts arose from a poorly written Pattern Jury Charge on legal malpractice.

A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, but also that the judgment would have been collectible in some amount, for therein lies the measure of damages.

(Emphasis added.)  The charge does not appear to be an accurate statement of Georgia law, especially in a “case within the case” legal malpractice claim.  No Georgia case states the law the way the jury charge is written.  The charge cites two cases:  Riddle v. Driebe, 153 Ga. App. 276 (1980), and Hughes v. Malone, 146 Ga. App. 341 (1978).  In Riddle, the word expert is not even mentioned in the opinion. The Court of Appeals in Hughes discussed the use of experts in malpractice cases only to establish the parameters of acceptable professional conduct, i.e., the standard of care.  Hughes, 146 Ga. App. at 345.  Hughes mentions nothing to support the charge that an expert must opine on whether the underlying claim would have been successful (actually, it suggests the opposite).  The charge is probably the result of a similarly worded charges in medical malpractice cases where experts must opine on how the medical outcome would have been different had the malpractice not occurred.

In certain types of legal malpractice cases, expert evidence addressing proximate cause may be appropriate.  For example, the failure to include a certain type of clause in a contract and the legal impact of what the proper clause would have done for the plaintiff may be an example of how a legal malpractice expert could testify on proximate cause.  The case within the case form of legal malpractice, however, is not an appropriate case for allowing an expert to opine on how the underlying case would have been different had the malpractice not occurred.  It is the duty of the jury to rule on the merits of the underlying case by listening to the evidence that would have been presented absent a breach of the duty of care.  If an expert would not have been permitted to testify in the underlying case on how the case should have been decided, no such testimony should be presented in the legal malpractice case.

The oral argument by Christine Mast is an important case for the clarification of legal malpractice jury charges and the scope of expert testimony.  Cases of this magnitude, especially in the professional liability arena, are often handled by Hawkins Parnell Thackston & Young, LLP attorneys.

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