Jury Reunion No Substitute For Expert Opinion

The Connecticut Supreme Court has affirmed the dismissal of a legal malpractice claim against a criminal defense attorney for lack of an expert opinion

In the present case, from the perspective of a lay juror, the causal link between the plaintiff’s allegations of negligence and the plaintiff’s criminal convictions is far from obvious. Specifically, even if the defendant’s omissions or conduct were shown to be negligent, it would be entirely unclear to a jury that those omissions or conduct, rather than the plaintiff’s commission of the charged crimes and the resulting evidence of her guilt, were the proximate cause of the plaintiff’s convictions. Stated otherwise, even if the defendant had done everything that the plaintiff now claims she should have done differently over the course of the plaintiff’s criminal trial, the state’s case might have been strong enough that the defendant still would have been convicted. Without any specialized knowledge of criminal law and procedure, specifically, the statutes proscribing the charged offenses and the rules governing the undertaking of a criminal trial, the jurors would be unable to determine, in light of the case the state presented, whether the alternative strategies suggested by the plaintiff had a viable chance of succeeding…

 Notably, many of the plaintiff’s allegations of negligence concern matters of pretrial preparation and trial strategy. It is true that ‘‘[l]egal malpractice may include an attorney’s failure to exercise ordinary care in preparing, managing, and presenting litigation. . . . But [d]ecisions of which witnesses to call, what testimony to obtain or when to cross-examine almost invariably are matters of judgment. . . . As such, the wisdom and consequences of these kinds of tactical choices made during litigation are generally matters beyond the ken of most jurors. And when the causal link is beyond the jury’s common understanding, expert testimony is necessary.’’

This was not the solution

As a final matter, we reject the plaintiff’s claim that the only way to prove causation in this malpractice action was to call as witnesses the jurors from her criminal trial, and elicit from them testimony regarding how they would have voted if the case had been defended differently.

Case dismissal affirmed. (Mike Frisch)