Missing Deadline for Expert Witness - Legal Malpractice

Complex civil cases often require expert witnesses. Courts require expert testimony when opinion evidence is required. Fact witnesses can testify about what they saw, did or said. But an expert is often required to pull all the facts together and show why a person or company is negligent.

An expert Witness can be anyone with knowledge or experience of a particular field or discipline beyond that to be expected of a layman.

Let’s look at a medical malpractice case. The patient, nurses and doctor can all testify about what happened in the operating room. But experts for the doctor and the patient are called to help explain what happened and say why what the doctor did was right or wrong.

In complex civil cases, judges typically issue a case management order that sets time limits for depositions, document review and motions. One of the deadlines in a case management order is the date for designation (naming) of experts and the date their reports are due.

Neither side in a dispute is allowed to name an expert at the last minute. If new facts emerge that require additional expert testimony, it is up to the party requiring additional expert testimony to ask the court for more time.

If your lawyer misses the expert deadlines set by the court, the court may bar that expert from testifying. If that happens and the lawyer doesn’t have a good reason for the tardiness, the lawyer may be guilty of legal malpractice. That is what one real estate company is claiming in New York State.

United Realty Advisors and its former CEO sued a former business partner claiming the man hacked into company servers and stole sensitive company data and trade secrets. That lawsuit was filed in 2014.

In 2016, the real estate company and its CEO switched lawyers. A new law firm, Herrick Feinstein, took over the case.

On October 6, 2016, a federal magistrate judge entered a new case management order saying that expert reports needed to be exchanged by December 16, 2016 and all expert related discovery be complete by January 20, 2017. The order said, “These deadlines will not be extended under any circumstances.”

The law firm decided that two experts would be needed. One to calculate damages and one to show how the alleged hacking took place.

The plaintiffs (real estate company and CEO) say they spent hundreds of thousands of dollars on these experts.

The expert reports were prepared and exchanged on January 12, 4 weeks after the deadline.  Predictably, the defendants moved to strike meaning they asked the court to preclude the experts from being able to testify at trial.

Unfortunately for the plaintiffs, the court agreed with the defendants and ordered that their experts could not testify. The court said, “it was a folly for plaintiffs to rely on a side agreement with one of the defendants without obtaining the Court’s agreement to change the court ordered deadline.”

Prior to trial, the law firm withdrew, probably because they were threatened with a legal malpractice lawsuit.

Plaintiff’s Legal Malpractice Case

Without expert witnesses, the plaintiffs were on a sinking ship. In August of 2019, they filed a legal malpractice case against their former lawyers.

To successfully sue a lawyer for legal malpractice must prove three things:

  • The lawyer owed a duty to provide competent representation to his client
  • The lawyer breached that duty
  • The client suffered harm as a result of the breach

In this case, there is little question that the law firm owed the real estate company and its former CEO a duty of competent representation.

It also appears clear that they failed to supply export reports in the time period required by the court. Is that malpractice?

The answer is probably yes, but hindsight is 20/20. 

The lawsuit was just filed so we don’t know what the former lawyers will say. They are free to argue, however, that the court was somehow wrong in barring the experts from testifying. The lawyers claim they told the magistrate judge that they were turning in the reports at a later date and that the defendants didn’t object.

We think the order speaks for itself but there is always more than one way to look at the issue. Remember, lawyers don’t guarantee results and sometime judges make mistakes. The mere fact that the court didn’t allow the experts to testify based on the late reports is not an automatic finding of malpractice

Another hurdle in this case is proving damages.

Let’s assume the experts were allowed to testify. Would the plaintiffs have won?

This is called the “case in the case.” That means that to prove your legal malpractice case, you must prove both that the lawyer committed malpractice and would have won the underlying case but for the lawyer’s mistakes.

Lest you think we are taking the side of the lawyers accused of malpractice, remember that the lawyers accused of malpractice also have a tough case. It’s hard for them to claim the original case was unwinnable when those lawyers probably told the court a dozen times how great their case was!

In the United Realty Advisors case, the plaintiff in the original case claimed $379,687,000.00 in damages. Because the case was filed as a RICO racketeering care, had they won, the plaintiffs would have been entitled to treble (triple) damages. That means over $1 billion! 

Obviously if the plaintiffs win the malpractice case and are awarded $1 billion, there is no legal malpractice policy in existence that will cover such damages.

Are You a Victim of Legal Malpractice?

If your lawyer missed a critical deadline and you lost your case because of that mistake, you are probably a victim of legal malpractice and entitled to compensation.

To learn more, visit our legal malpractice claims page. Think you have a claim? Give us a call.

There is no obligation and we never charge a fee unless we win and collect on your behalf. For more information, contact attorney Brian Mahany online, by email [hidden email] or by telephone at 877-858-8018. All inquiries are protected by the attorney – client privilege and kept confidential.


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