Archive for April, 2012

04
Apr
12

While Johnson v. Leibel is pending, Court of Appeals follows the holding in reversal

The Supreme Court of Georgia is currently considering the question of the admissibility of expert testimony on the subject of what a jury would have concluded about the cases within the case.  The Court has heard oral argument on the subject which was argued by Hawkins Parnell Thackston & Young, LLP‘s Christine Mast in Johnson v. Leibel.

We use these to fix mistakes.

Despite the fact that the case is pending in the Supreme Court and already argued, the Court of Appeals has relied upon its own decision in Johnson v. Leibel and reversed a trail court’s decision to exclude expert testimony.

In Tidwell v. Hinton & Powell, A11A2073, decided March 26, 2012, Tidwell hired counsel to bring a wrongful death claim arising out of a school bus incident.  The wrong party was sued and then the statute of limitation expired.  The law firm admitted negligence.  The defense was limited to the question of proximate cause, specifically the value of the case within the case.  In other words, the Plaintiff only had to prove the underlying wrongful death case – liability and damages. 

Despite the law firm’s admitted negligence, the plaintiff offered expert testimony from an attorney that a procedurally correct presentation of the facts would have resulted in a verdict for the plaintiff in excess of $500,000.   The law firm moved in limine to exclude this testimony, and Judge Forsling of Fulton County State Court unsurprisingly agreed, holding that the jury hearing the legal malpractice case could decide the merits and value of the underlying case just as a jury would have had the underlying case not been dismissed.

The Court of Appeals granted interlocutory appeal and reversed.  The Court of Appeal did not explicitly rule the evidence was admissible, but it did instruct the trial court to apply the holding of Johnson v. Leibel.  In Johnson, the Court of Appeals permitted similar testimony in a legal malpractice trial, and the language quoted by the Court Tidwell seemed to suggest that the Court of Appeals expected the evidence to be admitted.

It goes without saying that had the Plaintiff actually tried the underlying case in Tidwell (or in Johnson v. Leibel), it would have been improper to have an attorney testify to that jury who should win and how much should be awarded.  Why is it proper then for an attorney to testify on that subject in a case-within-the-case legal malpractice trial?  Hopefully the Supreme Court will soon clarify this issue and return the case-within-the-case decision to the jury rather than to the experts.

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