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SMITH v. HADEN

December 23, 1994

LINDA A. SMITH, Plaintiff,
v.
MABEL D. HADEN, Defendant.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 Ms. Haden denies the existence of an attorney-client relationship between her and plaintiff with regard to the filing of a civil action against Mr. Odom. She says she agreed to represent Ms. Smith only to file a claim on Ms. Smith's behalf under the Alaska Victim's Compensation Act and that, as a result of that representation, plaintiff obtained the maximum award authorized under the Act. With respect to any possible civil action against Mr. Odom, Ms. Haden asserts that she had referred plaintiff to an Alaska attorney, Ashley Dickerson. Ms. Haden states that plaintiff's injuries and damages, if any, were not proximately caused by any acts or any omissions by the defendant but may have been caused by the acts or omissions of others or by plaintiff's contributory negligence or assumption of the risk, or may have been preexisting or caused by a supervening or intervening cause.

 At trial, Linda Smith testified in support of her legal malpractice claim. Her counsel also called as witnesses the defendant, Mabel Haden, Esquire; John G. Gill, Jr., Esquire, a legal expert; Dr. Thomas Carl Goldman, an expert in the field of psychiatry; Javis Odom (by telephonic videotaped deposition de bene esse); and John Paul Wilson and Paul Zimmerman (by telephonic deposition), both representatives of State Farm Insurance Company.

 Mabel Haden testified in her own defense. Her counsel also called Edwin C. Brown, Jr., Esquire, a legal expert; Dr. Neil Blumberg (by videotaped deposition), an expert witness in the field of psychiatry; Robin Alexander, an employee of Ms. Haden's; and Ashley Dickerson, Esquire (by telephonic deposition de bene esse), an attorney licensed to practice in the State of Alaska.

 A number of interesting factual and legal questions were presented by this case concerning the applicable standard of care, the extent of plaintiff's post-traumatic stress disorder, the nature and extent of possible supervening or intervening causes for Ms. Smith's condition, and the interpretation of the exclusionary clause in Mr. Odom's homeowners' insurance policy. In the end, however, the Court finds that this case turns on issues of credibility and finds the defendant Mabel Haden, Robin Alexander and Ashley Dickerson more credible than the plaintiff Linda Smith on the crucial factual issues in dispute. As a result, the Court finds that Ms. Haden limited the scope of her representation of Ms. Smith to representing her in connection with her claim under the Alaska Victim's Compensation Act and did not undertake to represent Ms. Smith in connection with a possible civil action against Mr. Odom.

 A. Preliminary Matters

 At the close of trial, defendant renewed her motion for dismissal pursuant to Rule 50, Fed. R. Civ. P., and her motion to strike the testimony of plaintiff's legal expert, John G. Gill, Jr. Before setting forth its findings of fact and conclusions of law, the Court turns to these two preliminary matters.

 1. Motion to Dismiss

 By its terms Rule 50 only applies in cases tried to a jury. Rule 50(a), (b), Fed. R. Civ. P. Therefore, it is not appropriate to make a Rule 50 motion in a bench trial or for the Court to rule on such a motion. See generally 9 Wright and Miller, Federal Practice and Procedure, § 2523 (1971 and Supp. 1994); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 895 (Fed. Cir.), cert. denied, 469 U.S. 857, 83 L. Ed. 2d 120, 105 S. Ct. 187 (1984). A motion to dismiss or for judgment before the conclusion of all the evidence is appropriate in a bench trial under Rule 52(c), Fed. R. Civ. P. That Rule permits the Court, during a trial without a jury, to enter judgment as a matter of law at any time it can make a dispositive finding of fact on the evidence. Rule 52(c), Fed. R. Civ. P. In its discretion, the Court may wait until the close of all the evidence before ruling on a Rule 52(c) motion. Because defendant in this case waited until the end of the trial to move for judgment or dismissal, it is unnecessary for the Court to consider that motion and its authority under Rule 52(c). At the close of all the evidence, the Court's task remains unchanged -- the Court must enter a judgment on the basis of its findings of fact and conclusions of law. Defendant's motion to dismiss therefore is denied.

 2. Motion to Strike Expert Testimony

 In a legal malpractice case in the District of Columbia the plaintiff bears the burden of presenting evidence establishing that the parties entered into an attorney-client relationship, what the applicable standard of care is, that the standard of care has been violated by the defendant-lawyer, and that there was a causal relationship, or proximate cause, between the violation and the harm complained of -- in this case, the loss of a judgment in some sum against Mr. Odom. See Battle v. Thornton, Civ. No. 92-752, slip op. at 1284-85 (D.C. Aug. 11, 1994), citing O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982); Morrison v. MacNamara, 407 A.2d 555, 560 (D.C. 1979). To show that the negligence was the proximate cause of the injury, plaintiff must show that she had a good cause of action against the party she wished to sue; otherwise, the plaintiff "loses nothing by the conduct of [her] attorney even though the latter was guilty of gross negligence." Niosi v. Aiello, 69 A.2d 57, 60 (D.C. 1949). *fn1"

 In actions involving negligence by attorneys, their conduct must comport with that degree of care reasonably expected of other legal professionals acting under the same or similar circumstances. O'Neil v. Bergan, 452 A.2d at 341; Waldman v. Levine, 544 A.2d 683, 688 (D.C. 1988). Moreover, in order to make out a prima facie case of legal malpractice, the plaintiff must present expert testimony establishing the standard of care by which the defendant-attorney's conduct can be measured. The requirement to produce an expert is excused only where 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. Mills v. Cooter, Nos. 92-1152 and 93-985, slip op. at 10 (D.C. August 11, 1994); Hamilton v. Needham, 519 A.2d 172, 174 (D.C. 1986); O'Neil v. Bergan, 452 A.2d at 341. Allowing a statute of limitations to run on a client's claim is an example of the kind of lack of care and skill that can be found as a matter of common knowledge. O'Neil v. Bergan, 452 A.2d at 342.

 In support of her claim that Ms. Haden breached the applicable standard of care, plaintiff introduced the expert testimony of John G. Gill, Jr., to demonstrate the standard of care for an attorney who seeks to limit the scope of his or her representation of a particular client and who seeks to refer the client to another attorney for specific matters that may be related to the incident giving rise to the limited representation by the referring attorney. Mr. Gill also testified about both the litigation value and the settlement value of a timely filed suit against Mr. Odom. He based his opinion on the value of the case on his own experience in settling and trying medical and legal malpractice cases, his experience with Alaska cases, and a review of Alaska law jury verdicts. Gill Tr. at 14-17, 36-38.

 Defendant argues that the testimony of plaintiff's expert should be stricken from the record, and not considered by the Court, for two reasons: (i) Mr. Gill's testimony regarding the standard for limiting the scope of an attorney's representation, for referring a client to another attorney and for adequately communicating to the client the fact of the limitation and the referral was based solely on Mr. Gill's own personal experience, and (ii) Mr. Gill's testimony regarding the settlement value of a timely filed suit against Mr. Odom is too speculative to be admitted.

 Specifically, Mr. Gill testified that in the circumstances of this case, "the standard of care requires in writing a letter indicating that the scope of the limitation was somewhat less than working on everything that could legally be obtained from the incident or from the causes of action springing from the incident." Gill Tr. at 13. He testified that the written agreement between plaintiff and defendant (Pl. Ex. 1 and Def. Exh. 1) was unclear and "did not serve to clearly and reasonably communicate" the limited nature of defendant's representation. Gill Tr. at 12-13. In his opinion, a separate writing should have been given to Ms. Smith to clearly define the limited scope of the representation. Gill Tr. at 13, 32-34. Mr. Gill further testified that in his opinion "the standard of care [for a referral] requires a more formal referral to it in writing and a communication to the client in writing" that would explain the referral "and that the case is referred to Attorney Dickerson in Alaska, the name, address, phone number" and that the writing must inform Ms. Smith about the running of the statute of limitations. Gill Tr. at 13-14.

 Case law in the District of Columbia, not relating to attorneys as experts, requires that an expert witness testifying about the appropriate standard of care must articulate and refer to an objective standard by which the defendant's actions can be measured. District of Columbia v. Carmichael, 577 A.2d 312, 314-316 (D.C. 1990). The expert must provide specific normative standards or concrete examples by which the fact-finder can evaluate the defendant's conduct. Id. As the court explained in Toy v. District of Columbia, 549 A.2d 1, 7 (D.C. 1988), an expert must testify as to a factual basis beyond the expert's opinion upon which the trier of fact can evaluate the defendant's conduct. It is not sufficient if the expert's testimony "consists merely of the expert's opinion as to what he or she would do under similar circumstances." Id.

 Mr. Gill's testimony established that he is an expert in legal malpractice. There was no objection to his testifying as an expert. Gill Tr. at 7-8. Beyond establishing his expertise and stating his opinion under the two alternative scenarios, however, the only objective or normative standard to which he referred in discussing the applicable standard of care was Disciplinary Rule 6-101(A)(3) of the Code of Professional Responsibility then in effect in the District of Columbia. Gill Tr. at 11. That Disciplinary Rule would be relevant, he said, under his first scenario, namely, that Ms. Smith had in fact engaged Ms. Haden to bring a civil action against Mr. Odom in Alaska. *fn2"

  With respect to the second scenario (and, as it turns out, the relevant one in view of the Court's credibility findings), Mr. Gill did not rely on any particular Disciplinary Rule or other objective standard. In fact, he acknowledged that the then existing disciplinary rules did not require a writing either to limit the scope of the representation or to make a referral. Gill Tr. at 38-39. Mr. Gill's bases for his opinion were the pleadings and documents in this case, which he had reviewed, his observation of Ms. Smith's and Ms. Haden's testimony at trial, his personal experience handling legal and medical malpractice cases, his training of attorneys in his firm on the standard of care in such cases, and his teaching of standard of care in law school trial practice courses in the medical malpractice context. Gill Tr. at 6-7, 9. While Carmichael and Toy suggest that "particularized citation of normative standards" or other specific examples would have enhanced Mr. Gill's testimony, and thus have been helpful, Doe v. Dominion Bank of Washington, N.A., 295 U.S. App. D.C. 385, 963 F.2d 1552, 1563 (D.C. Cir. 1992), the Court is not convinced that the bases for Mr. Gill's opinion was in the least insufficient under the case law in the D.C. Circuit. Id. In view of this foundation, Mr. Gill's testimony about the standard of care for a client referral or limitation on the scope of a lawyer's representation sufficed to establish a standard of care by which the Court as fact-finder could evaluate Ms. Haden's conduct. See Doe v. Dominion Bank of Washington, N.A., 963 F.2d at 1563.

 Furthermore, neither Carmichael nor Toy addressed the basis required for an expert's opinion to prove standard of care in a legal malpractice case. Both Toy and Carmichael involved conduct that took place in realms unfamiliar to the fact-finders; Toy concerned police correctional procedures and Carmichael involved prison security procedures. A normative standard might be necessary in those cases and not here. "Where negligent conduct is alleged in a context which is [not] within the realm of common knowledge and everyday experience [of the fact-finder], the plaintiff is . . . required to adduce expert testimony either to establish the applicable standard of care or to prove that the defendant failed to adhere to it." Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C. 1991). *fn3" Thus, it may be that in some circumstances a jury may not be able to evaluate an expert's opinion about unfamiliar circumstances unless the opinion is based on objective standards or concrete examples. This is a bench trial involving the conduct of a lawyer, however, and the Court is fully capable of evaluating Mr. Gill's expert testimony in view of the bases for his opinion on standard of care. The Court therefore rejects the first prong of defendant's motion to strike.

 With respect to the second basis for defendant's motion to strike, the courts have taken various positions regarding the relevancy and admissibility of expert testimony as to verdict and settlement value. In Williams v. Bashman, 457 F. Supp. 322, 328 (E.D.Pa. 1978), the court explained that ordinarily it was appropriate to prove the probability of settlement and settlement value of the underlying case by expert testimony based on the usual outcome of similar cases. That was a non-jury case, and the parties stipulated that the court was competent to make such an expert assessment. See also Duncan v. Lord. 409 F. Supp. 687, 692 (E.D. Pa. 1976) (court determined damages on the basis of expert testimony regarding jury verdict and settlement value). In Fuschetti v. Bierman, 128 N.J. Super. 290, 319 A.2d 781 (N.J. Super. 1974), on the other hand, the court found that expert testimony regarding settlement value was irrelevant because it was speculative whether the case would have settled and because such testimony might lead to undue consumption of time and confuse the issues for determination by the jury. See also Tanner v. Caplin & Drysdale, 24 F.3d 874, 878 (6th Cir. 1994) (plaintiff's experts conceded that a certain settlement outcome was unlikely and that such a result would defy common sense, and acknowledged that they were incapable of determining the outcome of a trial).

 This case, like Williams and Duncan, was tried to the Court without a jury. The Court therefore finds that, unlike the situation in Fuschetti, the expert testimony did not confuse the issues; it was helpful to the Court. Furthermore, the very brief testimony of Mr. Gill and the even briefer testimony of Mr. Brown have already been presented to the Court, and undue consumption of time therefore is not a consideration on this motion to strike. The determination of whether Mr. Gill's testimony is too speculative to be relevant depends on whether Mr. Gill's testimony was sufficiently well-founded to be considered helpful to the Court in determining the value of the underlying case and its settlement value. The Court is competent to make that determination even if a jury might not be. While the Court disagrees with Mr. Gill's opinion on standard of care ...


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