In New York, expert testimony is generally required at trial or on a motion for summary judgment to successfully establish (or defend) each element of a legal malpractice claim. A major exception to that rule exists when the issues to be determined are within a layperson’s experience and comprehension1.
In Pennsylvania legal malpractice cases, expert testimony is also required unless the issue is within an ordinary layperson’s experience and comprehension2. Pennsylvania also requires a plaintiff to submit an attorney’s certificate of merit when commencing a legal malpractice action3. This certificate can be satisfied by stating that expert testimony is not needed, pursuant to Rule 1042.3(a)(3), however the consequence of such a filing is a prohibition against offering expert testimony later in the litigation, absent “exceptional circumstances.”4 If the plaintiff has not or is unable to present expert testimony, the defendant not need to present expert standard of care testimony in order to prevail on a summary judgment motion.5
The Supreme Court of New York’s recent decision in the high profile case Red Zone LLC v. Cadwalader, Wickersham & Taft LLP (Index No. 650318/2011) illustrates the aforementioned “layperson’s experience” exception, and underscores the point that expert testimony can be precluded if a Court finds that the issues to be determined fall within “the ken of the typical juror.” In Red Zone, the plaintiff alleges that Cadwalader failed to properly memorialize an oral agreement between Red Zone and UBS relating to UBS’s fee. Red Zone alleges that the agreement purportedly “capped” UBS’s fees at $2 million, but UBS later challenged the agreement and won a $10 million judgment. Shortly before trial, Red Zone moved to preclude Cadwalader from presenting any expert testimony, arguing that the case turned solely on a simple factual dispute about whether the law firm warned its client that the proposed amendment may not protect against the possibility of owing UBS an additional $8 million fee. Notwithstanding Cadwalader’s argument that its standard of care experts would have testified that it acted reasonably even under plaintiff’s version of events, and that expert testimony was required for additional proximate causation issues, the court (O.P. Sherwood, Justice) precluded both parties from presenting any expert testimony, reasoning that if the jury adopts the facts argued by Red Zone, the failure of Cadwalader to memorialize the parties’ agreement is “prima facie proof of professional malpractice.” Alternatively, Justice Sherwood reasoned that a “finding of no malpractice should follow” if the jury finds that that Cadwalader advised Red Zone not to sign the proposed amendment to the bank’s fee agreement. The Court held that “no expert testimony is needed” because this factual dispute did not “involve matters outside the ken of the typical juror” and would not “require specialized knowledge.”
The court’s preclusion of expert testimony in Red Zone reflects the relative unpredictability of legal malpractice litigation in comparison to other areas of professional malpractice litigation, particularly regarding whether expert testimony is required to determine issues that are supposedly within an “ordinary layperson’s” experience and comprehension. Legal malpractice practitioners must carefully consider potential admissibility issues when preparing for trial or a motion for summary judgment. ________________________________________________________
*This article was prepared by Andrew Jones and Aaron Barham of the New York City-based law firm of Furman Kornfeld & Brennan LLP. Andrew and Aaron work as part of a team of 15 lawyers and paralegals devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as the defense of construction and personal-injury accidents.
For more information about the above topic or the authors, please visit: www.fkblaw.com.
We trust that the above article was useful and thought-provoking; however, please note that it is intended as a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.For more information on LPL coverage generally, contact USI Affinity today.
- See, e.g., Suppiah v. Kalish, 76 A.D.3d 829 (1st Dept 2010); Wo Yee Hing Realty Corp. v. Stern, 99 A.D.3d 58 (1st Dept 2012); Melnick v Farrell, 128 A.D.3d 1371 (4th Dept 2014).
- Rizzo v. Haines, 555 A.2d 58 n.10 (Pa. 1989); Storm v. Golden, 538 A.2d 61 (Pa. Super. 1988).
- See Pa.R.C.P. 1042; Moore v. Luchsinger, 862 A.2d 361 (Pa. Super. 2004). Under Pa.R.C.P. No. 1042.3(a), the certificate must be filed within 60 days of the complaint and certify that (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
- Liggon-Redding v. Estate of Sugarman, 659 F.3d 258 (3d Cir. 2011).
- Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985); Zimmer Paper Products, Inc. v. Berger & Montague, P.C., 758 D.2d 86, 93-94 (3d Cir. 1985).