Day on Torts
Where a legal malpractice plaintiff provided no expert testimony to support his claims against defendant lawyer, summary judgment for the defendant was affirmed.
In Parks v. Holland, No. E2021-01506-COA-R3-CV (Tenn. Ct. App. May 15, 2023), plaintiff filed a pro se legal malpractice claim against defendant attorney based on the attorney’s representation of plaintiff in an employment discrimination/wrongful termination case. In the underlying case, plaintiff had settled his claim for $75,000 during a second mediation, but in this action, plaintiff asserted that he had instructed defendant attorney not to settle the underlying case for less than mid-to-high six figures. Plaintiff further asserted that defendant was negligent in failing to take into account plaintiff’s loss of health benefits, and in failing to file suit against another potential defendant.
Defendant attorney filed a motion for summary judgment, arguing that “Plaintiff provided no expert testimony to establish the standard of care for attorneys and no such evidence of any breach of that standard of care.” With his motion, defendant filed the expert affidavit of another attorney as well as his own affidavit. Both affidavits pointed out problems with plaintiff’s underlying case, opined that the plaintiff received a favorable settlement in the employment case, pointed out that plaintiff signed and agreed to the settlement, and stated that defendant did not breach the required standard of care. In addition, defendant presented evidence that plaintiff was informed that defendant would not file suit against the additional defendant and that plaintiff had stated he was happy with his representation after the mediated settlement.
The trial court granted summary judgment to defendant, ruling that plaintiff had failed to present expert testimony regarding defendant’s duty and any breach thereof. On appeal, summary judgment was affirmed.
A legal malpractice plaintiff must show “(1) that the accused attorney owed a duty to the plaintiff, (2) that the attorney breached that duty, (3) that the plaintiff suffered damages, (4) that the breach was the cause in fact of the plaintiff’s damages, and (5) that the attorney’s negligence was the proximate, or legal, cause of the plaintiff’s damages.” (internal citation omitted). While the question of whether the lawyer met the standard of care is a question of fact, it “is generally believed to be beyond the common knowledge of laypersons.” (internal citation omitted). Except in very rare circumstances, “expert testimony must be presented to establish the lawyer’s standard of care and whether the lawyer’s conduct departed from the applicable standard.” (internal citation omitted).
Here, plaintiff presented no expert proof whatsoever regarding the standard of care or defendant’s breach of such standard. The Court wrote that this was “not an obvious case of legal malpractice…especially considering Plaintiff had approved the settlement agreement in the underlying action at the time it was entered into.” The Court ruled that “expert proof was required as to Defendant’s duty of care to Plaintiff as well as Defendant’s failure to meet that duty.” Further, defendant presented expert proof that there was no breach of duty here. The Court accordingly affirmed the trial court’s grant of summary judgment to defendant attorney.
While this plaintiff was proceeding pro se, this case is nonetheless a reminder that almost all legal malpractice claims require the plaintiff to present expert proof.
This opinion was released four months after oral arguments in this case.
Note: Chapter 72, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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