Standard of Care

Attorney May Testify as Expert on Standard of Care, Not on Legal Conclusions that Determine Outcome of the Case

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Clay Cox (“Cox”), successor trustee for a coop formed to build and operate an ethanol facility, sued attorneys Michael Evans and Nancy Schell and their law firm, Froehling, Weber, Evans & Schell, LLP, (together “Defendants”) for legal malpractice. Defendants designated attorney Walker Filbert (“Filbert”) as their expert witness concerning whether Defendants “met the standard of practice for attorneys practicing law in central Illinois and that their conduct did not proximately cause any injury to the Coop.” Id. at 6. Cox moved to bar Filbert’s testimony, memorandum in support, and Defendants’ response. The motion was granted in part and denied in part.

In ruling on Cox’s motion, the Court applied the Daubert analysis, which requires evaluation of “(1) the proffered expert’s qualifications; (2) the reliability of the expert’s methodology; and (3) the relevance of the expert’s testimony.” Id. at 7, see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). With respect to Filbert’s qualifications, Cox argued that his “experience as a lawyer in central Illinois and a CEO of an ethanol company” did not qualify him to give testimony in this matter because he had “no experience with professional responsibility and legal malpractice.” Id. at 9. The Court disagreed, explaining that as “a practicing attorney, Filbert would have been required to understand the rules of professional conduct governing his practice of law and to follow those rules. Those obligations encompassed the dispute at issue here—ascertaining the standard of care for an attorney.” Id. at 10. As to Filbert’s methodology, Cox claimed his report was devoid of any proposed methodology and rested “entirely on his alleged expertise as a lawyer, drawing conclusions without any analysis.” Id. The Court sided with Defendants again, holding that Filbert’s opinions “were informed by his legal experience and his knowledge of practicing law in central Illinois” and that his “report and proposed testimony sufficiently link the facts he relies upon with his conclusions so as to be reliable.” Id. at 11. The Court also held that Filbert’s testimony was relevant, as the “touchstone of admissibility under Rule 702 is helpfulness to the jury” and “the lay juror is unlikely to have a strong understanding of the business considerations surrounding the purchase or sale of commercial property” as in this case. Id.

Cox did find success in arguing that some aspects of Filbert’s report “invade[d] the province of the jury and are based upon unsupported assumptions.” Id. Specifically, Cox objected to Filbert’s conclusion that Defendants’ alleged acts or omissions did not proximately cause the damages claimed. The Court agreed that this was an impermissible conclusion, explaining that expert testimony “as to legal conclusions that will determine the outcome of the case is inadmissible.” Id. at 12. It clarified that “while Filbert may not offer an opinion in front of the jury as to proximate cause, he may opine, consistent with his deposition testimony, that market forces and the state of the ethanol industry following the transaction affected the viability of the grain handling facility and the prospects of obtaining financing.” Id.

Cox v. Evans, No. 18-CV-1105-JES-JEH, 2020 WL 2093371 (C.D. Ill. May 1, 2020)

(This is for informational purposes and not legal advice.)

Illinois Legal Malpractice and Defense of Lawyers Blog — Novack and Macey LLP


Breach of the Standard of Care Must be the Proximate Cause

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Richard Sharif (“Sharif”) sued his former attorney, William Stevens (“Stevens”), for legal malpractice in an underlying matter.  He alleged that Stevens failed to comply with discovery and failed to properly raise arguments that would have resulted in a more favorable outcome.  The United States District Court for the Northern District of Illinois ruled in Stevens’ favor on all counts.  With respect to discovery, Sharif accused Stevens of not producing documents that Sharif tendered to him.  Here, the District Court held that Sharif was actually to blame because he “did not give Stevens certain documents that should have been given to him.”  Id. at 3.  As to whether Stevens should have raised a particular argument, the Northern District found that Stevens had violated the standard of care owed to Sharif.  However, the District Court still had to consider whether the court in the underlying matter “would have decided […] differently had the issue been properly raised.”  Id.  at 5.  This is because a successful claim for malpractice requires that a plaintiff establish “but for the negligence of the attorney, the plaintiff would not have suffered actual damages.”  Id. at 2.  On that point, Sharif made “no argument that a reasonable court would have made a different decision.”  Id. at 5.

Stevens v. Sharif, No. 15 C 1405, 2019 WL 4862171 (N.D. Ill. Sept. 30, 2019)

(This is for informational purposes and is not legal advice.)


A Plaintiff’s Responsibilities: Keeping Appointments, Presenting Expert Testimony, and Providing Records

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Loxley Johnson (“Johnson”), the sole proprietor of L.A. Transportation (“LAT”), stood accused of vendor fraud and theft.  He hired Stephen Komie (“Komie”) to represent him during the corresponding investigation by the Illinois Attorney General; paying Komie $5,000 in advance and signing a retainer agreement.  On Komie’s advice, Johnson agreed to extend the statute of limitations on the claims against him so a more thorough investigation could be conducted.  When a grand jury finally issued an indictment, Johnson signed a second retainer agreement to include the indictment within the scope of Komie’s representation.  The state later notified Johnson that there would be an administrative hearing at which LAT could be heard, but neither Johnson nor Komie appeared.  With that, LAT was defaulted, monetary damages were imposed, and both LAT and Johnson were excluded from certain state programs.  Komie then withdrew as Johnson’s counsel due to “irreconcilable differences.”  Id. at ¶13.  Johnson sued Komie for legal malpractice, accusing him of negligent representation and breaching their retainer contract when Komie failed to appear at the administrative hearing.  Id. at ¶1.  Komie filed a counterclaim for outstanding legal fees.  After a bench trial, the trial court found in favor of Komie on the malpractice claim and on his fee claim.

Appearing pro se, Johnson made multiple unsuccessful arguments.  First, he asserted that the trial court erred in granting summary judgment regarding Komie’s negligent recommendation that Johnson extend the statute of limitations and Komie’s allegedly bad-faith withdrawal.  The appellate court disagreed, holding that “absent an expert opinion” that Johnson never provided, “it is impossible for plaintiff to establish the applicable standard of care and whether defendant deviated from that standard.”  Id. at ¶39.  Next, Johnson argued that Komie’s victory on his counterclaim was against the manifest weight of the evidence.  Here, the appellate court was not able to properly examine the issue because Johnson had not provided a report of the relevant trial proceedings.  Johnson’s last argument as to Komie’s ineffective representation in the form of failing to appear at the administrative hearing was similarly flawed.  Moreover, the appellate court pointed out that “it is every litigant’s duty to follow the progress of his case, rather than to merely assume that counsel is doing all that is necessary and proper.”  Id. at ¶48.

Johnson v. Komie, 2019 IL App (1st) 171189-U

(This is for informational purposes and is not legal advice.)


McLeod v. Pignatelli, 2017

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The District Court for the Northern District of Illinois denied a plaintiff’s motion for partial summary judgment in a legal malpractice case.  The plaintiff argued that a Last Will and Testament drafted by his attorneys was ambiguous.  The court held that it whether drafting an ambiguous will was a breach of the standard of care was a question for the jury.

McLeod v. Pignatelli


Recent Illinois Case: Fox v. Seiden

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The First District held that summary judgment was improperly entered in favor of a malpractice plaintiff. In the underlying case, the malpractice plaintiff was found liable for attorneys’ fees even though she was not a defendant in the only count under which fees could be awarded. The malpractice defendants failed to make this argument in the underlying case.

The First District reversed the trial court’s summary judgment decision because the malpractice plaintiff: (a) failed to offer expert evidence that the malpractice defendants did not meet the standard of care; and (b) possibly was contributorily negligent.

The First District also rejected the malpractice defendants’ argument that summary judgment should have been entered in their favor. The court held that whether the malpractice plaintiff could have appealed the attorneys’ fee award was a question of fact not appropriate for summary judgment. The court similarly held that other proximate cause arguments raised issues of fact.

(This is for informational purposes and is not legal advice.)

Fox v. Seiden, 2016 IL App (1st) 141984

Land v. Auler, 186 Ill. App. 3d 382, 542 N.E.2d 509 (4th Dist. 1989)

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Land v. Auler, 186 Ill. App. 3d 382, 542 N.E.2d 509 (4th Dist. 1989)

Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984)

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Spivack, Shulman & Goldman v. Foremst Liquor Store, Inc., 124 Ill. App. 3d 676, 465 N.E.2d 500 (1st Dist. 1984) (judgment)

Smith v. Kurtzman, 106 Ill. App. 3d 712, 436 N.E.2d 1 (1st Dist. 1982)

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Smith v. Kurtzman, 106 Ill. App. 3d 712, 436 N.E.2d 1 (1st Dist. 1982)

DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997)

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DeSeno v. Becker, 291 Ill. App. 3d 421, 683 N.E.2d 159 (1st Dist. 1997) (consider at time of breach; lawyer need not advise of remote possibilities)

Shanley v. Barnett, 168 Ill. App. 3d 799, 523 N.E.2d 60 (1st Dist. 1988)

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Shanley v. Barnett, 168 Ill. App. 3d 799, 523 N.E.2d 60 (1st Dist. 1988)