Choose Your Experts Carefully

Most, if not all, malpractice claims require expert testimony. Thus, those of us who defend professionals are often called upon to retain an appropriate expert to assist in the defense. The reverse is also true: claims against professionals usually require an expert within the defendant’s field who is prepared to testify that the professional breached the applicable standard of care. Whether it be karma, failure to read PL Matters, or otherwise, an attorney in Iowa recently learned this lesson the hard way when a malpractice claim he pursued on behalf of a plaintiff, turned into a malpractice claim against him for failing to secure the right expert.

The following case demonstrates just how important choosing the proper expert can be and how the wrong choice can not only lose the case but result in exposure for potential malpractice.  In the underlying APL claim, an accounting firm was accused of audit malpractice involving a bank’s customer. The bank relied upon representations made in the financial statements, which turned out to be incorrect.  The bank pursued a malpractice claim against the accounting firm.  But, at trial, the accounting firm successfully moved to preclude the bank’s only expert from testifying on the grounds that the “expert” was not qualified to render an expert opinion regarding the standard of care applicable to an auditor.   The accounting firm prevailed at trial.

In turn, the bank sued its attorney for malpractice. The case proceeded to trial, where the bank retained an expert to testify that since the bank’s auditing expert was precluded from testifying in the underlying accounting malpractice suit, there was no witness available to testify as to the standard of care.  The jury returned a verdict in favor of the bank.  Judgment was entered against the law firm and the law firm appealed.

On appeal the court noted that with the exclusion of the bank’s only expert, the jury was unable to weigh one side’s expert opinion against the other.  The jury only heard expert testimony that the accounting firm was in fact not negligent.  The court affirmed in part and held that there was “evidence sufficient to prove all the necessary elements of the legal malpractice case.”

Clients rely upon lawyers to make quality recommendations for expert witnesses, and as this case demonstrates lawyers have a duty to select experts that are qualified to render the necessary opinions.  Therefore, it’s important to always do your research when selecting an expert.  Consider whether the chosen expert has rendered the type of opinion that you are seeking to obtain in previous trials.  Consider whether the expert is qualified in the given field and jurisdiction. Inquire whether the expert’s opinion has ever been challenged and the basis for the challenge.  Of course, determine whether the expert has ever been precluded from testifying for any reason.  Taking these critical steps before retaining the expert can protect you and your clients.

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