Litigation, especially legal malpractice litigation, requires specialized, specific, admissible proof of each of the prima facie elements of each cause of action. In a legal malpractice case the pleadings must support the cause of action. Later, either at summary judgment or on plaintiff’s case, an expert must give admissible testimony which supports the cause of action.
To support the cause of action at either summary judgment or the trial stage, the expert (for either side) must set forth the appropriate standard of care so that the trier of fact may determine whether there had been a departure from the appropriate standard of care. The expert often has to further opine whether plaintiff could have obtained a better result in the underlying case (“but for”). Because the subject matter of the legal malpractice is itself litigation, the expert might have to testify that had there been no departure, plaintiff would have succeeded in the underlying case. This article will discuss some aspects of what expert testimony is admissible, what testimony is permissible, and what testimony is persuasive.
Permissibility
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