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Recent case addresses legal-mal plaintiff's burden to prove causation
During 2012, Georgia appellate courts have addressed some important issues for Georgia attorneys. Notwithstanding the flurry of appellate activity, the three basic elements of a legal malpractice claim remain the same:
(1) a duty (i.e., an attorney-client relationshipeither express or implied, or foreseeable reliance);
(2) a breach (i.e., the attorney failed to exercise ordinary care, skill and diligence commonly possessed and exercised in Georgia); and
(3) proximately caused damages from the breach.
One without the other two is not legal malpractice in Georgia. Thus, not every mistake is legal malpractice, and not every client's damage is a basis for a legal malpractice action. Instead, a viable legal malpractice action only occurs when all three exist.
In recent years, the causation element has become one of the highest hurdles for a malpractice plaintiff to overcome. As a result, causation is now one of the most heavily litigated issues in legal malpractice cases. For claims where the underlying representation involved litigation, this means that a malpractice plaintiff must show that she or he would have obtained a successful result in the underlying case but for the attorney's negligence. Practically speaking, this requires the malpractice plaintiff to essentially re-try the underlying case during the malpractice trial.
In the context of disputed facts in a legal malpractice case, a jury must decide whether the plaintiff would have won in the underlying case if not for the attorney's error(s). This "trial within a trial" is often the crux of a malpractice case and the key issue for the jury's consideration.
Recently, in Leibel v. Johnson, the Georgia Supreme Court specifically addressed the plaintiff's burden in proving causation in a "trial within a trial" legal malpractice case. Importantly, in Leibel, the court limited a plaintiff's use of expert testimony to show that an attorney's breach caused damage to the plaintiff. Indeed, the court's holding raises the causation bar even higher for plaintiffs, providing attorneys an extra layer of protection for malpractice liability.
In Leibel, Mary Johnson ("Johnson") retained Steven K. Leibel & Associates, P.C. ("Leibel") to pursue an age and gender discrimination suit. A magistrate dismissed Johnson's state law claims and granted summary judgment on the remaining claims on the grounds that Johnson failed to establish that defendant's "actions were discriminatorily motivated or that the proffered justifications were pretextual." Johnson's appeals of the magistrate's decision were unsuccessful.
Johnson then sued Leibel for malpractice, claiming that Liebel had failed to introduce evidence that would have created a factual dispute and prevented summary judgment against her, and that Liebel failed to timely file a notice of appeal. The jury returned a $2 million verdict in favor of Johnson. Liebel appealed to the Georgia Court of Appeals.
The Georgia Supreme Court addressed (among other things) whether the trial court properly admitted certain testimony of Johnson's legal malpractice expert witness. The expert testified that Johnson would have been successful in the underlying case, if not for Leibel's alleged negligence.
Interestingly, plaintiff's counsel specifically asked the expert whether the evidence, including that which Leibel failed to introduce, would have established a prima facia case of discrimination. Counsel cautioned the expert, "I am not asking you to, in any way, suggest to this jury what it should do in this case, but rather my questions go to your opinion as to what ought to have happened in the underlying case based on your education, training, and experience."
In response, the expert testified there was "powerful evidence of pretext" that "tipped the balance" in Johnson's favor. He testified further that Johnson made a prima facie case of age and gender discrimination.
Leibel argued that the expert's testimony should have been excluded because it improperly usurped the role of the jury. The Court of Appeals disagreed and held that the expert testimony was admissible. The court distinguished between cases prohibiting expert testimony on the ultimate issue because the jury could reach the same conclusion without such testimony, and cases such as this where expert testimony is necessary to assist the jury in determining causation. The court concluded:
[E]xpert testimony is admissible to prove proximate cause in those legal malpractice cases in which a lay person could not competently determine whether or not the negligence of the attorney proximately caused the plaintiff's damages (i.e., whether the plaintiff would have prevailed in the underlying action).
Leibel appealed to the Supreme Court of Georgia, which reversed the Court of Appeals' judgment. In its decision, the Supreme Court recognized that proving causation often requires the plaintiff to prove a "suit within a suit"; that is, that but for the attorney's breach in the underlying case, the plaintiff would have prevailed. "[T]he ultimate goal of the 'suit within a suit' is to determine what the outcome should have been if the issue had been properly presented in the first instance."
The Supreme Court then held that the Court of Appeals erred in holding that the expert testimony on causation was admissible. The court's holding was predicated on a clarification of the jury's role in a malpractice case. The court explained that the jury in the malpractice case is not required to determine what the actual jury in the underlying case would have done, but rather what a reasonable jury would have done had the underlying case been tried without the attorney's negligence. This requires the jury in the malpractice case to independently evaluate the evidence in the underlying case.
For this reason, the Supreme Court concluded that "the Court of Appeals was incorrect in its conclusion that the jury in the malpractice case was tasked with deciding an issue that could not be resolved by the average lay person." Instead, the jury was simply being asked to do what the jury in the underlying case was asked to doto evaluate the evidence and decide the case on its merits. The court concluded that "[t]his is a task that is solely for the jury, and that is not properly the subject of expert testimony."
From a risk-management perspective, Leibel is not all good news for attorneys. Just as plaintiffs cannot rely on experts to prove causation, defendant attorneys cannot rely on experts to disprove causation. In the context of actual law practices, this makes sense. Experts cannot displace either judges or juries from a prior action, no matter how the question is phrased. Leibel prohibits expert testimony in a legal malpractice case on what the outcome of an underlying case would have been but for the attorney's breach.
Leibel illustrates a couple of important points for lawyers confronted with a bad outcome, or those facing a threat of a legal malpractice claim. First, not every loss in court translates into a valid legal malpractice claim. Instead, the loss must have been caused by a breach of duty by the attorney. Basically, losses are not ipso facto legal malpractice.
Second, plaintiffs cannot use an expert with the benefit of hindsight to establish that the loss was caused by something the attorney did or failed to do. Either the court on a motion for summary judgment, or a jury will have to decide causation all on its own.
J. Randolph Evans and Shari L. Klevens are the authors of Georgia Legal Malpractice Law, published by Daily Report Books.