Delaware Superior Court Dismissed Plaintiff’s Legal Malpractice Claims Because He Failed To Identify an Expert Witness Who Would Support His Claims at His Forthcoming Jury Trial.

In Weiner v. Holfeld, 2021 WL 5577255 (Del. Super. Ct. Nov. 30, 2021), the plaintiff claimed that expert testimony was not necessary because the matter at issue involved obvious common sense and public knowledge. The Superior Court, however, held: “[e]ven if Defendant's alleged mistakes were deemed ‘obvious’ or matters of common sense, an expert's opinion would still be necessary to clarify (1) what damages were caused by the Defendant's inadequate representation; (2) if and how the Plaintiff's conduct should factor into any award of damages; and (3) whether the Defendant's alleged inadequate representation was the proximate cause of the Plaintiff's damages. Because these matters are not the type ‘that a layman, exercising his common sense, [would be] perfectly competent to determine[,]’ an expert's opinion is required.”

The court’s conclusion is interesting in that it would be very difficult to find circumstances where an expert’s testimony would not be required in a legal malpractice case arising from litigation. For example, it may be obvious that an attorney failed to file a complaint before the expiration of the applicable statute of limitations. Expert testimony, however, would be required to demonstrate the extent of any damages; whether the plaintiff contributed to the failure to timely file a complaint; and whether the plaintiff would have prevailed in the underlying action if a complaint had been timely filed. 
 

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