Division III of the Court of Appeals recently addressed the question of whether a claimant needs expert testimony to avoid summary judgment in a legal malpractice case. In Slack v. Luke, 2016 WL 917310, ___ P.3d ___ (Wn. App. Mar. 10, 2016), the plaintiff alleged that her lawyer had not timely filed an employment claim. In the face of a defense motion for summary judgment, the plaintiff offered two expert affidavits to the effect that her lawyer had a duty to file the employment claim before the statute of limitation ran. The expert affidavits, however, did not address whether the plaintiff’s underlying employment claim had merit in the first place.
The defense, by contrast, submitted a declaration from another expert opining that the underlying employment claim was meritless and argued that, having failed to show through expert testimony that her employment claim had merit, her legal malpractice claim also failed. The trial court agreed and dismissed. The Court of Appeals affirmed, but had a different take on the question of expert testimony.
The Court of Appeals began by outlining Washington’s long-standing approach to expert testimony in a legal malpractice case: generally requiring it to establish the standard of care except “‘when the negligence charged is within the common knowledge of lay persons.’” Id. at *4., quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979). The Court of Appeals, however, concluded that the question of whether the underlying claim had merit went to causation rather than the standard of care. Causation, the Court of Appeals noted, is ordinarily a question of fact for a jury. But, when challenged on summary judgment, the Court of Appeals reasoned that a plaintiff in a legal malpractice case arising out of asserted errors in handling an underlying claim must “demonstrate that her underlying claim would itself survive summary judgment.” Id. at *5.
In this instance, the Court of Appeals found that the underlying employment claim lacked merit as a matter of law, and, therefore, even expert testimony would not have saved her subsequent legal malpractice claim. Accordingly, it affirmed the dismissal. The Court of Appeals’ approach, however, implies that with a closer call, expert testimony on the merit of the underlying claim might create a fact issue on summary judgment and send the subsequent legal malpractice case on to trial.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He is chair of the WSBA Committee on Professional Ethics and a co-editor of the Bar’s publications Law of Lawyering in Washington and the Legal Ethics Deskbook. He can be reached at 503-224-4895, mark@frllp.com.
