Monday, December 29, 2014
Page 3
Lack of Expert Testimony Required Judgment for Lawyer—C.A.
By a MetNews Staff Writer
An attorney who told a client she could pursue her “judgment” when he meant “arbitration award” did not commit conduct “so bad” that expert testimony was unnecessary to establish that the “goof” constituted malpractice, the Fourth District Court of Appeal has ruled.
The opinion by Justice William W. Bedsworth of the Santa Ana-based Div. Three affirms a judgment in favor of Irvine attorney David Lally, sued, for various alleged omissions, by his former client Jeanne Rickey. Lally represented her in connection with the bankruptcy of her debtor, James Reed, opposing his reorganization plan and filing a proof of claim for $12,5000 based on an arbitration award in that amount in favor of Rickey.
It was after Reed’s bankruptcy was dismissed that Lally mistakenly made reference to Rickey having a “judgment” against Reed.
In suing the lawyer for malpractice, Rickey claimed that the misstatement prejudiced her, and faulted Lally for not filing an amended claim against Reed, a contractor, to encompass latent defects.
Rickey’s action was tried to a judge, Orange Superior Court Judge Gail Andrea Andler. Bedsworth noted that Andler pinpointed the “essential” reason for her verdict in favor of Lally: the lack of expert testimony.
In an unpublished decision filed Tuesday, Bedsworth said:
“The general rule, of course, is that expert evidence is a prerequisite to establish a case of legal malpractice…. The need for expert testimony has particular force where the attorney, as here, holds himself or herself out as a specialist….
“There is an exception, however, to the general rule, namely for malpractice that is so bad—that is, so obvious—that expert testimony is not needed.”
The exception, Bedsworth said, did not apply, given the limited scope of the work Lally did coupled with the technical bankruptcy context of Lally’s alleged goofs.”
He wrote:
“So the question arises: Can we say, as a matter of law, that Lally’s free-to-pursue-her-judgment statement was so obviously below the standard of care of bankruptcy attorneys specifically hired “only” to file plan objections that no expert testimony was needed to establish the proposition that the statement was below the standard of care.
“We can’t….”
He said that “whether Lally fell below the standard of care in using, in the bankruptcy context, the word ‘judgment’ when ‘arbitration award’ would have been more felicitous” and whether he otherwise failed to meet that standard, is not something we have the expertise to ascertain,” explaining:
“None of the members of this panel are bankruptcy experts. And without expert testimony as to what a bankruptcy lawyer would have been normally expected to do under the circumstances, whether Lally’s conduct fell below the standard of care is a mystery to us, as it was to the trial court. That mystery necessitated a judgment for the defense.”
The case is Rickey v. Lally, G049507.
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