Expert's voice carries weight

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Indiana Lawyer Focus

Thanks to a recent Indiana Court of Appeals ruling, all it may take to prove legal malpractice is one expert witness saying how he or she would have handled the issue differently.

In September, a three-judge panel held that an attorney’s expert witness testimony about his or her own practices can be used in a legal malpractice case to establish a “standard of care,” even if that method isn’t an accepted or uniform practice within the legal community. Typically in these types of cases, a broader pattern of practice and conduct in the legal community is analyzed.

“In my opinion, this is the most dangerous thing I’ve seen for lawyers in legal malpractice litigation,” said Indianapolis attorney Patrick Olmstead with Hoover Hull, who authored a brief for the Indiana State Bar Association’s General Practice, Solo & Small Firm Section. “Any lawyer admitted to practice law in Indiana, with a passing knowledge of the matter, could say this is my practice and this is what other attorneys should do. If that happens, it would be more difficult to obtain summary judgment.”

In Corrine R. Finnerty, as Successor Personal Representative of the Estate of Dora Grace Lee, deceased v. Joseph A. Colussi and the Colussi Law Office, No. 39A01-1011-ES-622, Madison attorney Joseph Colussi served as counsel to a personal representative on an estate for a woman who died in 2007. The estate sued Colussi, arguing that he committed legal malpractice by not personally monitoring the estate’s account and how money was used by family members; Colussi countersued to recover unpaid attorney fees. The estate enlisted Columbus attorney Thomas C. Bigley Jr. as an expert witness, who said Colussi breached the applicable standard of care by failing to control and monitor the checking account. In his deposition, Bigley

testified that the applicable standard of care requires an estate attorney to retain the estate’s checkbook, thereby requiring the personal representative to come to the attorney’s office to obtain checks. He also said he would have more carefully monitored the opening of the estate and would have had monthly bank statements from the estate sent to his office.

The trial court granted summary judgment in Colussi’s favor, holding that while Bigley was a qualified expert witness, he didn’t establish that it was a uniform or accepted standard for a representative’s attorney to monitor a bank account.

The appellate court called that conclusion “puzzling,” writing that personal experience is often the source of expertise. It held that the expertise of one attorney could be used to determine a standard of care that proves or disproves whether a breach occurred. According to the appellate panel, the trial court confused the issues of duty and breach, and as an expert witness Bigley wasn’t “lacking in foundation” to offer his opinion about the standard of care.

As a result of Bigley’s expert testimony being admitted, the appellate panel found a material question of fact existed about legal malpractice and the judges remanded the case for trial. A transfer petition has been filed with the Indiana Supreme Court, which had not taken action on the case as of IL deadline.

The holding drew response from sections of the Indiana State Bar Association as well as the Defense Trial Counsel of Indiana.

“Requiring that experts in professional liability cases testify regarding applicable standard of care, rather than permitting testimony that a particular professional would have done things differently or that their individual practice was or is different than the defendant’s practice, serves a number of important interests including ensuring fundamental fairness in those cases,” Indianapolis attorney Don Kite wrote in the DTCI brief.

Olmstead sees this case as one that could impact how legal malpractice suits are litigated. Since most are resolved by summary judgment once they get to court, Olmstead believes that the Court of Appeals holding will allow for a more diverse mix of what a “standard” is and that more of these disputes will have to go to trial.

“Making a choice based on two reasonable options and getting a bad result isn’t malpractice,” he said. “That’s best practices, not a standard of care, and we need to be focusing on what the community of attorneys does under these circumstances.”

cox-dina-mug.jpg Cox

Finding attorneys to testify in those types of cases can be difficult enough, Olmstead and others say, without having to worry about whether that lawyer’s practices alone will be dubbed the applicable standard of care.

Some lawyers say they look outside the local legal market to find attorneys who might be expert witnesses, while others say they stay within the local market in order to judge what that legal community typically does on that aspect of legal work.

In Hammond, David Beach with Eichhorn & Eichhorn said that finding attorneys can be a challenge simply because of the type of case. He’s looked to attorneys outside the state and has asked law professors from Northern Indiana and Illinois to testify. If it’s an Indiana-specific issue, Beach and his partners rely on Hoosier attorneys who have indicated they are willing to testify in legal malpractice cases.

“You are, at times, asking colleagues to take a stand in court, and you might have contemporaries squaring off against one another in a field they both practice in,” Beach said.

At Lewis Wagner in Indianapolis, professional liability defense attorney Dina Cox said she’s had difficulty getting local attorneys to testify against another in that same market.

“That burns too many bridges, and it’s uncomfortable and awkward,” she said. “Some might say that’s a flaw in the legal community, but it comes down to wanting a civil and courteous professional relationship with your colleagues. You just don’t want that cloud over your head.”•


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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.