Expert Needed for Legal Malpractice Case to Survive


Where plaintiff submitted no expert proof to support his legal malpractice claim, summary judgment for defendant was affirmed.

In Guo v. Rogers, No. M2020-01209-COA-R3-CV, 2022 WL 1220917 (Tenn. Ct. App. April 26, 2022), plaintiff was represented by defendant attorney in an underlying case in which plaintiff asserted several claims, including malicious prosecution. Plaintiff’s primary complaint here was that “Defendant failed to bring to the attention of the trial judge in that matter…evidence that a criminal charge against Plaintiff had been dismissed and judicially expunged.” The trial court in the underlying case granted the opposing party summary judgment based on several legal grounds, including that while expungement by executive order was a favorable outcome for purposes of a malicious prosecution claim, plaintiff had failed to show that a judicial expungement should be treated in the same way. Plaintiff thereafter filed this pro se legal malpractice claim against defendant.

In the instant case, defendant moved for summary judgment on the legal malpractice claim, which the trial court granted. On appeal, summary judgment was affirmed.

When assessing whether the trial court erred by granting summary judgment, the Court of Appeals reviewed the elements of a legal malpractice claim and specifically noted that “expert testimony is required to establish negligence and proximate cause unless the alleged malpractice is within the common knowledge of laymen.” (internal citation omitted). After noting that plaintiff failed to properly respond to defendant’s statement of undisputed material facts, the Court determined that summary judgment was appropriate here even without considering the facts admitted, explaining:

Crucially, Plaintiff has submitted no expert proof that Defendant breached the applicable professional standard of care. Contrary to Plaintiff’s insistence, this was not an obvious case of legal malpractice. The underlying lawsuit involved legal questions as to what constitutes a favorable termination for purposes of malicious prosecution; the answer is not necessarily obvious. Expert proof was required as to Defendant’s duty to Plaintiff as well as Defendant’s failure to meet that duty and that damages resulted from that neglect. Instead, Plaintiff has simply offered his lay opinions. Plaintiff’s chief complaint is that Defendant failed to obtain his full case file from Plaintiff’s former attorney. However, Plaintiff fails to explain how this, or any other of Defendant’s alleged deficiencies in representation, led to Plaintiff losing his underlying lawsuit. On the contrary, the record reveals that in the underlying lawsuit, Judge Binkley ruled that a judicial expungement was not a favorable termination for purposes of Plaintiff’s malicious prosecution claim. This was a legal interpretation made by Judge Binkley. Plaintiff fails to explain how Judge Binkley’s interpretation of the law would have been different but for an act or omission on Defendant’s part. Plaintiff’s lay opinion that Defendant did a poor job on his case is not a basis for sustaining a claim of legal malpractice. We affirm the Trial Court in its grant of summary judgment in favor of Defendant with respect to Plaintiff’s complaint.

After also affirming the trial court’s denial of plaintiff’s motion to continue and motion to amend, and well as affirming summary judgment in favor of defendant on his breach of contract counterclaim, the trial court’s ruling was affirmed in whole.

This opinion was released two months after oral arguments in this case.

Note:  Chapter 64, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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