Most of the attorneys who contact us are looking for a testifying expert. Presumably that’s because many experts won’t testify (for all kinds of reasons), but are willing to assist attorneys in understanding and preparing cases for litigation, which makes finding consultants easier for attorneys than finding testifiers. Nevertheless, sometimes attorneys do need our help obtaining a consulting expert, and sometimes they even want one of each.
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 wi
The South Dakota Supreme Court recently upheld summary judgment against the plaintiff in an auto accident case who failed to submit an affidavit from a medical expert on the issue of causation. Cooper v.
Here’s a timely reminder that Federal Rule of Evidence 702 (the basis of the Supreme Court’s famous Daubert decision) imposes a four-part test. For expert opinion testimony to be admissible, the fact that the expert has “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue” [Fed. R. Evid. 702(a)] is necessary, but not sufficient.