Expert testimony on legal issues is not admissible.

As in any professional malpractice litigation, the plaintiff in a legal malpractice case must present expert opinion testimony to establish that the defendant breached the standard of care.  Unlike other professional malpractice cases, however, the causation issue in a legal malpractice case – namely, whether the client would have achieved a better result if the attorney had handled the matter properly – almost always presents a question of law, and such questions are not a proper subject for expert testimony.  As a federal court of appeals tartly observed, “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.” Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997).

The Massachusetts Supreme Judicial Court recently provided a masterful exposition of this principle in Greenspun v. Boghossian, (5/22/2019).  The court summarized the facts as follows:

After a judge of the Probate and Family Court authorized the plaintiff's former wife, incident to their divorce, to buy out his interest in the former marital residence for one-half of its value (effectively recognizing a one-half interest in the wife), the plaintiff brought an action…for legal malpractice, claiming that his attorney failed properly to incorporate into an antenuptial agreement an agreed-upon provision that would have entitled his wife to only a small fraction of the home's value.

The plaintiff had an expert ready to testify on the defendant attorney’s negligence, but not on causation.  The court below granted the defendant’s motion for summary judgment; the supreme court reversed.

The court began by emphasizing the well-established nature of the principle that a legal opinion is not a proper subject for expert testimony.  It cited three prior Massachusetts applying this principle:  one held, as matter of law, that an attorney’s alleged negligence could not have caused harm; another ruled that expert testimony on the existence of an ethical violation is improper, as the trial judge can instruct the jury regarding the requirements of ethical rules; and a third held that proffered expert testimony was improper because it offered the legal conclusion that the defendant’s conduct violated a particular statute.  In short, expert opinion testimony on a question of law is not allowed, because the only person authorized to express legal opinions in a courtroom is the judge.

In Greenspun, the causation issue was

whether the antenuptial agreement would have been determined to be valid and enforceable in the underlying divorce proceeding had it been drafted as the plaintiff instructed, based on an assessment of its fairness, reasonableness, and conscionability.  Such questions of contract interpretation, validity, and enforceability are questions of law for a judge.  Because they are legal questions, expert testimony not only is not required; it is not admissible. [Citations and quotation marks omitted.]

This case caught my eye, not because it deals with legal malpractice – requests to Vident Partners for legal malpractice experts are extremely rare – but because this issue arises in other contexts as well.  On several occasions – usually involving commercial litigation, but sometimes even in medical malpractice cases – I’ve been asked to provide an expert to testify on an issue that clearly presented a pure question of law for the judge.  So this is something worth keeping in mind.


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