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Expert's voice carries weight

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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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