In our last post, we looked at the topic of expert witness immunity and the changing tide of opinion regarding the rule of absolute immunity for friendly expert witnesses. As we noted last time, expert witness testimony can be critical in building a strong civil case, and attorneys have a duty to secure reliable, qualified expert testimony or evidence in cases where it is necessary to succeed on the claims.
A recent New Jersey legal malpractice case highlights what can happen to an attorney who doesn’t follow through with his or her duties regarding expert witnesses. The case involves the failure of an attorney to secure expert reports by an agreed-on deadline in a construction defect case. The case was reportedly dismissed because the attorney failed to submit the reports to the court on time.
In the legal malpractice case following the suit’s dismissal, the attorney argued that the expert he had selected to provide a report on the defects in question had promised on multiple occasions to provide a report but never delivered one. As it turns out, though, neither the attorney nor his partners in law had any written or electronic correspondence to support the argument. Rather, they claimed, the communication was by telephone. The individual ended up receiving a jury verdict for $850,000, which is the amount he was able to recover in the malpractice suit.
In this case, it wouldn’t be surprising to learn that the verdict was based on the lawyer’s breach of the duty to diligently represent the client, or on a failure in the duty to communicate with the client. Whatever the basis for the award, it makes clear both the importance of expert testimony and an attorney’s duty to ensure that a client’s case is supported by such evidence when it is necessary for zealous representation of the client’s rights and interests.
