Experts and Defenses in Legal Malpractice Cases: Virginia Supreme Court Sheds Some Important Light

Last week, in Sere v. Trapeni, the Virginia Supreme Court handed down a very interesting opinion in a legal malpractice appeal. The Court provided important guidance on when a court’s previous rulings can affect new cases and when litigants may, and sometimes must, use expert testimony to prove claims.

Legal malpractice cases typically involve two arguments:
First, A client suing her former lawyer for malpractice must show that the lawyer made a mistake.
Second, the client then has to show that if the lawyer hadn’t made that mistake, the client would’ve won her case.

In this case, as part of the first prong of malpractice claim, Sere said her former lawyer, Trapeni, made a mistake by suing, in Sere’s personal injury case, the wrong company. According to Sere, when Trapeni realized his mistake, he tried to fix the problem but waited too long and the statute of limitations ran out, meaning Sere had run out of time to sue the right company for personal injuries.

To prove that Trapeni made a mistake, Sere relied on the rulings of the trial judge in Sere’s original personal injury case. That judge in that original case ruled that Trapeni had in fact sued the wrong company. The judge had also ruled that the statute of limitations to sue the correct company had passed before Trapeni fixed the mistake.

The Supreme Court, though, disagreed with Sere’s strategy of using the trial judge’s rulings from the personal injury case to prove, in the malpractice lawsuit, that Trapeni had made mistakes.  Even though Trapeni was Sere’s lawyer in the personal injury, the trial judge’s rulings (that the wrong company had been sued and that time had run out to file a corrected suit) weren’t binding on Trapeni. Trapeni, the Supreme Court explained, wasn’t a party to the personal injury case – he was just a lawyer for one of the parties. Therefore, Trapeni wasn’t stuck, in the malpractice case, with the trial judge’s rulings even if Sere was stuck with them in the personal injury case.

Instead, the Supreme Court ruled, if Sere wanted to prove that Trapeni made mistakes in the personal injury case, she was going to have to do it with evidence that she put on at trial in the malpractice case.

Collateral estoppel and issue preclusion, legal doctrines that guard against re-litigating issues that have already been tried, don’t apply where the lawyer being sued for malpractice was not a party to the lawsuit where the malpractice is said to have occurred.

But Sere wasn’t done fighting. She reasoned that even if she couldn’t rely on the trial judge’s rulings in the personal injury case, the jury in the malpractice case could easily understand that Trapeni had made mistakes in the personal injury lawsuit. After all, Sere argued, it shouldn’t be hard for a jury to conclude that a lawyer committed malpractice by suing the wrong company or by allowing the statute of limitations to expire.

Wrong again, said the Supreme Court. The Court concluded that Sere’s claims about alleged deficiencies in Trapeni’s work weren’t so simple. In fact, they were complex and an expert was required to explain those issues to a jury. For example, the Court reasoned, it may be that Trapeni sued the right company after all. It may also be that the statute of limitations had not run on the case: whether a voluntary dismissal in federal court, pursuant to Federal Rule of Civil Procedure 41, tolls (i.e., pauses) the running of a statute of limitations if the case is later brought in state court is not something an ordinary juror might understand without the benefit of expert testimony. (Indeed, as the Supreme Court noted, the answer to this question may not even be well understood by attorneys– the Virginia Supreme Court hasn’t explicitly decided it.)

So, Sere could not rely on jurors’ common sense to prove Trapeni’s malpractice.  Instead, said the Court, “[e]xpert testimony was required [to prove] whether Trapeni failed to exercise reasonable … care [or] skill” in his representation of Sere.

But wait, there’s more! Not so fast about that expert. At the end of its opinion, the Supreme Court observed in a footnote that the questions that had to be decided to prove Trapeni’s malpractice, or not, were “purely questions of law.” Thus, in keeping with long-standing Virginia practice, expert opinion was not only not required to answer these questions, expert opinion was inadmissible, which is to say not permitted at all. Questions of law, unlike other areas of expertise where expert opinion is permitted, have to be answered by the trial judge. It stands to reason that in a trial with legal questions to decide, the best expert in the room should be the trial judge.

So why did the Court rule, in Trapeni’s favor, that an expert was required in this case?  Unfortunately for Sere, who argued her case in the Supreme Court pro se (i.e., without a lawyer), “Sere did not raise this argument [that expert testimony on legal questions is improper] below or on appeal.”  The Supreme Court declined to make an argument on Sere’s behalf that she neglected to advance on her own. In keeping with the Virginia Supreme Court’s historic view of its role, it declined to decide issues that were not properly preserved or advanced on appeal. Let this outcome be yet another word of caution against litigants representing themselves.

Sere is an unsigned opinion and the Court’s website indicates that it is an “unpublished order.” The Court didn’t say why this opinion was unpublished. The fact, though, that Sere was pro se and that not all the arguments that might have resolved the case were raised, made the case a bit of a procedural dog’s breakfast. That likely counseled in favor of more limited circulation of this case. Nevertheless, there are good lessons in this case for how and when to use prior litigation as a defensive shield in litigation, and for the necessity of, and limitations to, expert testimony.