Legal malpractice decision explores roles of judge, jury, and expert in District of Columbia
In a legal malpractice case, Hickey v. Scott, No. 07-1866 (D.D.C. July 11, 2011), the District Court explored the respective roles of the judge, jury, and expert under D.C. law. (An earlier decision in this case was previously discussed here.)
The claim discussed in this ruling was the plaintiff's allegation that the lawyer violated the applicable standard of care by failing to request Laffey Matrix hourly rates in his petition for attorney's fees in the underlying action before the EEOC. Before the District Court was the issue of the permissible scope of expert testimony with regard to that claim. Should the parties' experts be permitted to testify on whether it is a breach of the appropriate standard of care for an eligible attorney not to request Laffey rates in his fee petition before the EEOC, and instead request only his lower, contractual rates? Second, should the experts be permitted to testify whether the attorney met the legal criteria for an award of Laffey rates? Third, should the experts be permitted to testify whether the attorney's failure to petition for Laffey rates was the proximate cause of any injury to the former client?
Each of these questions implicated the respective roles of the Court, the jury, and the experts at trial.
The Court ruled that whether it is a breach of the applicable standard of care for an eligible attorney not to file a fee petition for Laffey rates before the EEOC is a question that the jury must decide.
However, expert testimony as to the applicable standard of care is appropriate and necessary, unless the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge.
The Court also ruled that the experts would be allowed to opine on whether it is a breach of the standard of care for an attorney in the same circumstances not to petition for Laffey rates.
On the other hand, the legal criteria for an award of Laffey rates was ruled to be a matter of law, within the sole province of the Court, and upon which the experts were not permitted to testify. Surprisingly, the District Court cited an Illinois decision on this point.
The Court also ruled that once it had instructed the jury as to the law on an attorney's eligibility for Laffey rates, the question of whether the attorney satisfied these legal criteria was one for the jury to decide.
Finally, the Court considered the issue of who would decide whether the attorney's failure to petition for Laffey rates was the proximate cause of injury? In other words, whether such a petition for Laffey rates, if made, would have been successful? The District Court characterized this as a variety of the "case-within-a-case" issues typical of legal malpractice cases. Here, the issue was whether a reasonable Administrative Law Judge would have awarded fees at the higher Laffey rates if the attorney had sought them.
Adopting the approach of a number of non-District of Columbia precedents, the District Court ruled that the jury should perform its traditional function of applying law to facts, even when the earlier factfinder was a judge -- as long as it only involves an application of law to facts, not a decision on a disputed issue of law. Under this approach, the Court simply instructs the jury on the legal aspects of the case, and then leaves it to the jury to decide what a reasonable fact-finder would have concluded if the attorney had not been negligent.
Finally, the Court considered whether the jury may be assisted by expert testimony in making that assessment. Citing precedent from the Second Circuit, Virginia, and California, the District Court ruled that no, the parties experts would not be permitted to testify on this, and invade the jury's function by reaching the ultimate question of whether a petition for Laffey rates before a reasonable ALJ would have been successful.
The District Court acknowledged that there is a fine line between an expert's testimony on why an attorney's failure to petition for Laffey rates constituted a breach of the standard of care, and expert testimony on whether a reasonable ALJ would have awarded Laffey rates, however "[a]lthough the distinction may be subtle, it is one that must be drawn."
This decision provides a framework for future legal malpractice cases to help properly delimit the respective roles of the parties' experts, the jury, and the Court.