Article. Abstract:
Attorney-experts in legal malpractice litigation are like many other experts. Although easily distinguishable from experts offering science-based testimony, attorney expertise is similar to that of witnesses offering experience-based testimony, and very much like the expertise of a physician in a medical malpractice case. An attorney-expert is, however, somewhat unique among experts in terms of the type of expertise offered, the inherent risk that the expert’s testimony will invade the province of the judge or jury, and, I believe, the risk of over-testifying. First, there is a problem of defining the attorney-expert’s “expertise” to ensure that the expert is not testifying as an expert in “law” (which is prohibited, even though the attorney is an expert in law), but is instead a fact witness (with expertise in the “factual” standards of practice in the legal community). That problem gives rise to the perceived danger, unique to experts in law, of the expert invading the province of the judge and jury. How is the “factual” standard of practice not a “legal” standard? Third, I argue that there is a special risk of over-testifying and advocacy, on the part of attorney-experts in legal malpractice cases, when one or more of four defenses are raised by a defendant. Two of them, assumption of the risk and contributory negligence, tend to blame the client even when there is attorney negligence; and two of them, professional judgment and unsettled law, allow for “honest” mistakes. All of these defenses involve interpretive instability and subjective judgments, thereby encouraging confident testimony by contradictory attorney-experts. Some solutions have been offered, but I conclude that these risks may be endemic to the structure that allows attorney-experts to testify, and as such they are not subject to resolution by any particular regulatory scheme.