Experts are Like Produce: Buy Local

A key issue in most professional malpractice cases is whether the professional complied with the applicable standard of care. Given that this standard is defined by individual professional communities, an expert is almost always needed to assist the fact-finder. Not just any expert will do. Rather, an ideal expert must be in a position to opine whether the questionable conduct complied with the standard upheld in the defendant’s jurisdiction. This issue was recently raised in Delaware when an expert’s opinion was ignored because he lacked an understanding of the locale at issue.

Phillips v. Wilks, Lukoff & Bracegirdle, LLC, demonstrates the importance of considering an expert’s knowledge within a particular locale. Phillips is a legal malpractice claim arising out of a fee dispute between clients and attorneys (an all too familiar issue). When the attorneys sued for unpaid fees, the client counterclaimed pursuant to a malpractice theory.


As the case progressed, the former clients retained an expert to opine on the attorneys’ alleged breach of the standard. Importantly, however, the expert was an attorney practicing in New Jersey, as opposed to a local Delaware attorney. The counterclaim defendant/attorneys moved for summary judgment asserting that their former clients failed to obtain a qualified standard of care expert. The trial court agreed and granted summary judgment.


On appeal, the Delaware Supreme Court upheld the trial court’s decision. The court found that the expert in a legal malpractice action must be familiar with the applicable standard of care in the locality where the alleged malpractice occurred. This means, according to the court, that although the expert can be an out-of-state expert, the expert must be well acquainted and thoroughly conversant with the degree of ordinary skill employed by the local community. Alternatively, according to the court, the expert can be familiar with the standard of care of another state that is identical. However, in this limited circumstance, where the expert might be familiar with a standard of care of a different locality that is identical, that party must provide a bridging expert to testify that the two localities have the same standard of care.


The court found that the plaintiffs only demonstrated that their expert familiarized himself with Delaware case-law and that this did not make him a qualified expert and show that he was well acquainted with the local standard of care. The court concluded that although the New Jersey and Delaware standard of care might be similar, the plaintiffs failed to provide a separate bridging expert.


This case provides a valuable lesson in retaining an expert and attacking the credibility of an adverse expert. In certain scenarios, but not in all cases, an expert must be familiar with the applicable standard of care in the locality where the malpractice occurred and cannot just be pulled from a nationwide database. Retention of an expert is an important component of the defense of professionals and due care must be taken to ensure that the opinion is admissible.