Day on Torts
In most legal malpractice cases, a plaintiff will need expert proof regarding the applicable standard of care.
In Elaster v. Massey, No. E2017-00020-COA-R3-CV (Tenn. Ct. App. Feb. 22, 2018), plaintiff filed a pro se legal malpractice case against two attorneys who had previously represented her in a workers’ compensation claim. Plaintiff claimed that defendants had settled her workers’ comp claim without informing her, and that they had generally “failed to adequately represent her in the workers’ compensation case.”
Defendants filed a motion for summary judgment, supported by their own affidavits stating that they had “complied with all relevant standards of care in their representation of [plaintiff].” In support of their motion, defendants filed a statement of undisputed material facts, which stated that plaintiff’s workers’ compensation claim was “disputed and doubtful,” and that even though they had negotiated a settlement in that case, plaintiff repudiated and the case was never actually settled. In response to the motion, plaintiff “admitted that no settlement agreement was ever finalized, that she never entered into any settlement agreement with her former employer, that no settlement funds were ever paid, and that both [defendants] were familiar with the standard of care required in the underlying workers’ compensation case.” Importantly, plaintiff “cited only to her complaint” in responding to the summary judgment motion, and presented no expert proof that defendants’ conduct fell below the standard of care.
The trial court granted the motion for summary judgment on the basis that plaintiff failed to “provide any qualified expert proof to support her claim,” and the Court of Appeals affirmed.
When discussing the required proof in a legal malpractice claim, the Court of Appeals cited a previous Tennessee Supreme Court decision:
Whether a lawyer’s conduct meets the applicable professional standards is generally believed to be beyond the common knowledge of laypersons. Thus, except in cases involving clear and palpable negligence, most courts considering the issue have held that cases of legal malpractice cannot be decided without expert proof regarding the applicable standard of care and whether the lawyer’s conduct complies with this standard.
(quoting Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d 400 (Tenn. 1991)). Here, defendants presented their own affidavits as proof that they did not breach the standard of care, and plaintiff failed to offer any contradicting expert proof.
Plaintiff argued that no expert proof was needed in this case, but the Court disagreed. The Court noted that despite the underlying claim being “doubtful,” defendants had managed to negotiate a settlement that plaintiff refused to take. The Court found that “[w]hether [defendants] alleged lack of diligence, delay, and failure to investigate constitutes a breach of the standard of care based upon these particular facts is not within the common knowledge of laymen.” Because plaintiff did not have the required proof, summary judgment for defendants was affirmed.
The lesson here is simple—plaintiffs asserting legal malpractice claims need to be prepared to provide expert proof that there was a breach of the standard of care. Failure to do so will often be fatal to a case.