Issue: When do I have to hire an expert witness in a legal malpractice case and who pays for it?

Insight: Most legal malpractice cases require expert testimony to prove that the lawyer’s conduct fell below the standard of care of a reasonable attorney acting in a similar situation.  Expert witnesses are typically experienced lawyers, who practice in the same area of law in which the malpractice occurred.  For example, in a divorce malpractice case, the expert would likely be an experienced divorce attorney.

The purpose of expert testimony is to assist the judge or jury to understand when a mistake rises to the level of malpractice, which is usually beyond the comprehension of the average person.  However, when an attorney’s negligence is so gross and obvious that a lay person would be able to comprehend the issue, an expert may not be required. An experienced malpractice attorney will usually make the call whether there is a need for an expert under a given set of facts.

Normally, the claimant is responsible for the cost of retaining an expert, but malpractice attorneys typically advance the funds, which are reimbursed when and if there is a successful result.