March, after extensive discovery, defendants filed, and in April, 1985, the Magistrate heard, a motion for summary judgment. Meanwhile, the Magistrate had conducted a pretrial conference and filed a pretrial order so that the case was ready for trial on September 18. However, on September 10, 1985, the Magistrate filed a report with the Court recommending that defendants' motion for summary judgment be granted. Memorandum Opinion, Report and Recommendation (Mem.) (filed Sept. 10, 1985). In light of Magistrate Burnett's recommendation, the Court postponed the trial and, on the day it was to have begun, held an extended hearing on the summary judgment motion. See Transcript of Proceedings (Tr.) (September 18, 1985). Considering the motion de novo with the benefit of Magistrate Burnett's helpful memorandum (a copy of which is attached hereto and made a part hereof), the Court is persuaded that undisputed facts establish that the motion is well taken. The accompanying order will grant defendants' motion for summary judgment.
At the September 18 hearing the parties raised two preliminary, technical questions. Defendants urged that the action be maintained against the law firm (as well as Mr. Dobrovir) despite the rule in the District of Columbia that a partnership is not an entity capable of suing or being sued. Defendants invoke an Ohio statute as authority for their position. Ohio Rev. Code § 2307.24. They claim that since this action was commenced in Ohio, plaintiff's domicile, the suit could have been maintained there against the partnership.
They refer to Fed. R. Civ. P. 17(b) which says that an individual's capacity to sue is determined by the law of his domicile. Plaintiff does not challenge defendants' suggestion, and there is strong authority supporting the Magistrate's recommendation, that Ohio law be applied. Van Dusen v. Barrack, 376 U.S. 612, 638-39, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); see also Walko Corp. v. Burger Chef Systems, Inc., 180 U.S. App. D.C. 306, 554 F.2d 1165, 1167 (D.C. Cir. 1977). Accordingly, the case will be maintained here against both Mr. Dobrovir and the partnership, as it would have been if the case had not been transferred from the District Court in Ohio.
Plaintiff questions the authority of the Magistrate to entertain, and to make recommendations on, the summary judgment motion. Plaintiff's Objection to Magistrate Burnett [sic] Memorandum Opinion, Report and Recommendation of September 10, 1985 (Plaintiff's Objection) (filed Sept. 17, 1985). However, there is clear statutory authority for this role for the magistrate. See 28 U.S.C. § 636.
While the order of reference to conduct pretrial proceedings did not specifically authorize the Magistrate to hear and make recommendations about dispositive motions, to do so is an authorized element of pretrial proceedings. 28 U.S.C. § 636 (b)(1)(B). Moreover, Mr. Applegate had notice of, and participated in, the summary judgment proceedings before the Magistrate. At this late date, he has no valid objection to the Court's having the benefit of the recommendation developed from those proceedings. Because plaintiff has raised written objections to the Magistrate's Report, the Court will decide the summary judgment motion de novo. 28 U.S.C. § 636; Tr. at 7-8. The bulk of plaintiff's objections address the merits of the Magistrate's Report. These concerns have been received and considered.
On the malpractice issue, defendants contend, and the Magistrate recommends, that the motion be granted because it is well-established that the plaintiff in such a case has the burden of establishing the standard of care and of proving that the defendants failed to meet it. Defendants' Mem. at 8-22; Mem. at 2-11. Yet in this case, despite numerous opportunities and great effort to locate an expert willing and able to testify on his behalf with respect to the standard of care and defendants' departure from it, plaintiff has proffered none.
Plaintiff explains that he has contacted numerous potential expert witnesses, without success. He does not claim that he lacks means to engage an expert, only that none has been willing to appear. In addition, plaintiff questions the necessity for expert testimony to establish his prima facie case. If one is nevertheless needed, he suggests that the Court appoint one. Plaintiff's Objection at 2.
As the Magistrate correctly observes, Mem. at 3-6, it is well established in this district that in legal (as well as medical) malpractice cases, expert testimony proving the applicable standard of care is an essential element of plaintiff's prima facie case. E.g., Eibl v. Kogan, 494 A.2d 640 (D.C. App. 1985); O'Neil v. Bergan, 452 A.2d 337 (D.C. App. 1982).
This Court once permitted a legal malpractice claim to go to the jury despite plaintiff's failure to offer expert testimony only to have the judgment for plaintiff reversed and remanded. Hozie v. Rykhus, No. 76-2272 (D.D.C. April 14, 1978), rev'd., Nos. 78-1856 and 78-1893 (D.C. Cir. November 7, 1979) (unpublished). This is also the law in Ohio. McInnis v. Hyatt Legal Clinics, 10 Ohio St. 3d 112, 461 N.E.2d 1295 (1984); Bloom v. Dieckmann, 11 Ohio App. 3d 202, 464 N.E.2d 187 (1983).
Both Ohio and the District of Columbia recognize the "common knowledge" exception to the general rule that a legal malpractice action must be supported by expert testimony. O'Neil, supra, provides:
In a legal malpractice action, the plaintiff must present expert testimony establishing the standard of care unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.
452 A.2d at 341 (citations omitted).
The complexity of Mr. Applegate's first amendment claim against the government, the very extensive pretrial preparations,
the several pretrial rulings by the court, and the legal and practical difficulty of second-guessing an eve-of-trial settlement,
make it obvious that the malpractice issue was not cognizable by layman judging on the basis of common knowledge and common sense, unaided by expert testimony. Moreover, whether defendants should have given more attention to what appears to be cumulative evidence tendered by plaintiff on the eve of trial is also a question requiring expert testimony. See Mem. at 7; Tr. at 38.
To the extent that plaintiff claims defendants breached their professional duty by failing to introduce specific items of evidence at trial, his claim must fail. Questions of tactics are in the lawyer's discretion. According to the court in Frank v. Bloom, 634 F.2d 1245, 1256-57 (10th Cir. 1980):
The fact, . . . that the attorney in the heat of the trial disregards the direction of the client as to trial strategy or activity does not give the client a right of action against the attorney. After all, it is the duty of the attorney who is a professional to determine trial strategy. If the client had the last word on this, the client could be his or her own lawyer. Therefore, an attorney does not ordinarily violate his duty to the client by rejecting a client's suggested tactic.
The only fact proffered by plaintiff which even resembles the kind of occurrence which a jury might appraise without an expert relates to some correspondence between plaintiff and his attorneys which apparently was lost or misplaced by the attorneys. But, it is undisputed that this correspondence did not contain evidence which would be necessary to prove a fact at trial. See Tr. at 84-92. In any event, whether it would or would not have been usable or necessary, and whether the loss of the correspondence was in any way causally connected to any consequence, would be a matter beyond the ken of a jury operating without the assistance of an expert witness.
At the hearing on the motion for summary judgment, the Court sua sponte raised the question of whether the Court should appoint an expert witness for Mr. Applegate because he was proceeding pro se and, in challenging military procurement, was representing an unpopular cause and therefore faced difficulty in finding a witness willing to testify on his behalf. On reflection and after considering supplemental memoranda filed on the subject, the Court is persuaded that, even though there may be authority to appoint an expert in a civil case, and to tax the cost of the expert's services, Fed. R. Evid. 706
this case does not present the "compelling circumstances" which would make appointment of an expert by the court appropriate. See United States Marshals Service v. Means, 741 F.2d 1053 (8th Cir. 1984) (en banc). Here, plaintiff has the burden of proof. He is not indigent. He does not claim that he failed to obtain an expert because he could not afford one. It may well be that just as plaintiffs suing doctors have difficulty persuading other doctors to testify against a colleague for fear of reprisal, some lawyers may also be unwilling to testify against some colleagues. But, there is little basis for such a concern here. Although plaintiff's cause may be unpopular, it is judicially noticed that defendants have represented equally unpopular causes in this Court. In sum, the Rule 706 authority to appoint an expert is discretionary. Whatever may be the authority or responsibility of a court to appoint an expert in some civil cases, there is no justification for appointing one here.
Plaintiff also contends that the defendants were guilty of fraud in inducing him to settle his case against the government. In appraising the fraud claim, the Court is governed by the principle that clear and convincing evidence is a requisite to a successful fraud claim,
and by the strong policy favoring and protecting the settlement of controversies in litigation. The Court is also cognizant of the elements a plaintiff alleging fraud must plead and prove. These are:
(1) a false representation; (2) in reference to a material fact; (3) made with knowledge of its falsity; (4) with the intent to deceive; and (5) causing one to act upon the representation.
Mills v. Cosmopolitan Insurance Agency, Inc., 424 A.2d 43, 46 (D.C. 1980) (citing Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. App. 1977), cert. denied, 434 U.S. 1034, 54 L. Ed. 2d 782, 98 S. Ct. 768 (1978)).
The fraud claim in this case is a convoluted one. The fees and expenses to finance the underlying case were not paid by Mr. Applegate, but by a foundation. Dobrovir Affidavit at paras. 3, 4. On the eve of trial, and while the settlement offer was "on the table," Mr. Dobrovir told plaintiff that the law firm had run out of money, but that the firm was prepared to go to trial if plaintiff did not accept the offer. Dobrovir Affidavit at para. 13(b). He was also told that he was likely to lose the case by "the thickness of a fingernail." Mem. at 13.
It is apparent from undisputed evidence that the grant made to fund the law suit was exhausted and that plaintiff knew or should have known that was the fact as of the eve of trial. See Plaintiff's Pretrial Brief at 40 (filed July 22, 1985); Dobrovir Affidavit at para. 13. Because the statement that the funds had run out was true in fact, it cannot serve as the basis for a claim of fraudulent misrepresentation. Plaintiff also claims that he thought that the foundation which had funded the case up to that time would, if asked, provide additional funds. He supports this allegation with his own affidavit filed August 22, 1984, purporting to quote Anne Zill, President of the Fund for Constitutional Government. As the affidavit stands, it is inadmissible hearsay, and plaintiff has proffered no affidavit from Zill, herself. Consequently, plaintiff's allegation that the Fund would have provided additional funding had it been asked is mere speculation. Such speculation is not the clear and convincing evidence required to maintain a fraud claim.
Plaintiff further testified that he did not believe, and therefore did not rely on, defendants' representation that they were prepared to proceed to trial without additional funding. Plaintiff's March 29, 1985 Supplemental Affidavit and Statement Of Material Facts As To Which There Are Genuine Issues at 3 (filed April 3, 1985). But, it is apparent that defendants had no realistic alternative to trying the case if plaintiff had rejected the settlement. The defendants had conducted hundreds of hours of preparation; Chief Judge Robinson had set a firm and imminent trial date. Plaintiff suggests no theory on which defendants could have avoided a trial, even if they had wanted to avoid it. Most importantly, however, plaintiff cannot sustain a fraud claim on a representation which he did not believe and on which he did not rely.
Finally, plaintiff attempts to inject into his fraud claim the fact that defendants advised him on the eve of trial that in their opinion he was likely to lose "by the thickness of a fingernail." But, again, there is no proffered evidence to show that these statements were anything more than a professional opinion. The validity of this opinion, right or wrong, and especially as to a future event, is not a fact susceptible to being proved by clear and convincing evidence. Cf. Chaplin v. United States, 81 U.S. App. D.C. 80, 157 F.2d 697 (D.C. Cir. 1946) (a claim of false pretense must relate to a past event or existing fact, not future event). Moreover, even if the opinion given appeared questionable, expert opinion would be required to establish whether the opinion was, in fact, reasonable.
Viewed in perspective, it is apparent that plaintiff's fraud claim is a variation of his malpractice claim. No prima facie case can be established on either count without expert testimony. Moreover, because the alleged fraudulent misrepresentations were either true in fact or not relied upon, expert testimony could not supply the clear and convincing evidence required to sustain a prima facie case for plaintiff on the fraud issue. Accordingly, the accompanying order will grant defendants' motion for summary judgment.
MEMORANDUM OPINION, REPORT AND RECOMMENDATION
While the defendant throughout the record in this case has been referred to as Dobrovir, Oakes and Gebhardt, a law partnership, it appears that the only proper defendant before the Court is William A. Dobrovir, a general partner, the only individual who was served with the summons and complaint and who has, in fact, appeared and defended against the complaint in this suit. Before the Court at this time is the defendant's motion for summary judgment as to each of the two (2) causes of action contained in the plaintiff's Second Amended Complaint, the first cause of action asserting legal malpractice (negligence) and the second cause of action asserting fraud.
The Legal Malpractice Cause of Action
This is a diversity action which was originally filed in the Southern District of Ohio and later transferred to this Court under 28 U.S.C. § 1404(a) for the convenience of the parties and in the interest of justice. In this situation a transferee court, the District Court for the District of Columbia, is obligated to apply the law that would have been applied by the local courts of the State, in this case Ohio, in which the action was originally filed. See, Van Dusen v. Barrack, 376 U.S. 612, 638-39, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964). A change of venue under Section 1404(a) generally is to be regarded, with respect to State law, as merely a change in courtrooms. See also, Walko Corp. v. Burger Chef Systems, Inc., 180 U.S. App. D.C. 306, 554 F.2d 1165 (D.C. Cir. 1977). Thus, the Magistrate is of the view that we must look to the law of Ohio as to the legal malpractice claim to determine if the granting of summary judgment would be proper in this case based on the failure of the plaintiff to have an expert witness to testify as to the standard of care required of the lawyer in the context of pretrial investigation and discovery and trial preparation of a civil case involving constitutional claims of dismissal from Federal service in retaliation for making public disclosures and complaints to superiors concerning government waste and excessive pricing in procurements involving military expenditures, and whether the attorney's conduct in this case was a breach of that standard. At the final pretrial conference of August 1, 1985 and in a number of filings with the court prior to that time, plaintiff has stated he has no expert and that the nature of the conduct of the lawyers in this case on which he bases his claims of negligence was so egregious and so plain that it is within the ken of jurors as laymen to understand. Thus, Mr. Applegate has repeatedly taken the position that no expert witness is necessary.
Our research has resulted in our finding three (3) relevant cases from Ohio. In McInnis v. Hyatt Legal Clinics, 10 Ohio St. 3d 112, 461 N.E. 2d 1295 (1984), the Supreme Court of Ohio observed that generally, expert testimony would be required in regard to professional standards of performance, although in that case it concluded that expert testimony was not necessary, observing that the claimed breach of professional duty was well within the common understanding of the laymen on the jury. In that case the client had specifically requested that none of the divorce proceedings be in a newspaper since he lived in a small community where the residents were unaware that he was not married to the woman with whom he was living at the time, and the attorney gave the client a written assurance that no notice or information would be in any newspaper. The Supreme Court of Ohio observed that the attorney should have informed his client of the legal necessity of publication.
In Bloom v. Dieckmann, 11 Ohio App. 3d 202, 464 N.E. 2d 187 (Ohio App. 1983), the Court of Appeals of Ohio, Hamilton County, in what it characterized as a case of first impression, stated:
"The question whether expert opinion is necessary to support a claim of legal malpractice is one of first impression in Ohio. The issue, however, has been considered by a number of other jurisdictions. As stated in Annotation (1982), 14 A.L.R. 4th 170, 173:
'* * * It now appears to be the rule that expert evidence is required in a legal malpractice case to establish the attorney's breach of his duty of care except in cases where the breach or lack thereof is so obvious that it may be determined by the court as a matter of law, or is within the ordinary knowledge and experience of laymen * * *.' (Emphasis added.)*