Legal Malpractice Expert Witness Testimony Allowed

The plaintiff sued her former attorney and his law firm for negligence, legal malpractice, and other causes of action.  The defendants filed a motion to exclude or limit the testimony of plaintiff’s expert witness.  The court denied the motion.

Facts: In this case (Felicia M. Desimini v. John F. Durkin, Jr. and Wilson, Bush, Durkin & Keefe PC – United States District Court – District of New Hampshire – May 27th, 2015), the plaintiff (Demisimi) filed a legal malpractice action, as well as negligence and other causes, against her former attorney for their alleged misrepresentation in her divorce proceeding.  Desimini hired Jennifer Brooke Sargent to testify as a legal malpractice expert witness and the defendant (Durkin) moved to exclude the testimony on the grounds of qualification and relevancy.

Discussion: Durkin filed a motion to exclude the testimony of Sargent as she lacks experience in the area of family and divorce law and because her opinions about violations of the New Hampshire Rules of Professional Conduct are irrelevant to Durkin’s claims.  Desimini argued that Sargent is qualified to render her expertise in this case and that the New Hampshire Rules provide the standards of professional responsibility, which is pertinent to the legal malpractice issues in this case.

The court first addressed the issue of qualifications.  After discussing her resume in their opinion, the court stated that the New Hampshire Supreme Court (or any other court interpreting New Hampshire law) that an expert providing an opinion on the standard or case for a legal malpractice action should practice in the same area of law as the details in the case.   The New Hampshire Supreme Court had opined similarly in a medical malpractice case.  In that case, they stated that a lack of specialization in a particular field does not automatically disqualify an expert from testifying as an expert in that field.

The court in the present case opined that the defendants have not shown why Sargent’s qualifications make her unsuited to testify.  Also, they stated that any criticisms of her background go to the weight of the opinions and not to their admissibility.

The court then moved to the legal opinions based on the New Hampshire Rules of Professional Conduct.  The court cited cases where a plaintiff cannot rely alone on a violation of these rules for purposes of a legal malpractice claim.  Also, courts in other jurisdictions have held that violations of ethical rules are relevant to the standard of care in legal malpractice actions.  The court also cited to one case where ethical rules do not provide the standard of care in legal malpractice cases, but this case is clearly in the minority.

Last, the court showed how Sargent utilizing the New Hampshire Rules of Conduct were relevant to the present case, and provided direct cites to back up her claims.  Thus, they opined, Sargent’s opinions will be admitted in this case.

Held: The defendants’ motion to exclude the expert witness testimony of  Jennifer Brooke Sargent is denied.