Wednesday, August 13, 2014

Expert Not Always Required In Legal Malpractice Claim

The New Hampshire Supreme Court has reversed an order dismissing a legal malpractice case.

The court held that there is no per se rule that requires a legal malpractice plaintiff to offer expert testimony

...the trial court granted the defendants’ motion to dismiss because "the plaintiff . . . failed to disclose an expert capable of establishing the standard of care and the breach of that standard of care as well as the proximate cause of the alleged injuries." The trial court based its decision on a categorical rule that, "[b]ecause the extent to which an attorney, in the exercise of due care, should investigate a claim to file a timely action is not a matter of common knowledge, a jury would not be able to evaluate the adequacy of the attorney’s actions without the aid of expert testimony." (Quotation omitted.) Because we have not adopted such an unqualified rule, the trial court erred as a matter of law in granting the motion to dismiss. See, e.g., Carbone, 151 N.H. at 528-29 (explaining case was not "one of those exceptional cases where [the defendant’s] breach of the standard of care was so obviously the legal cause of [the plaintiff’s] injuries that expert testimony was not required"); Wong, 148 N.H. at 374 (affirming dismissal of legal malpractice claim for lack of expert testimony because evidence of negligence was not "so patent and conclusive that reasonable persons c[ould] reach only one conclusion" (quotation omitted)).

 The underlying case was brought by the plaintiff against a defendant wjo was alleged to have removed timber from his property. That case was dismissed on statute of limitations grounds. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2014/08/the-new-hampshire-supreme-court-has-reversed-an-order-dismissing-a-legal-malpractice-case.html

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