Kenneth Feldman, Corinne Bertsche Publish Daily Journal Article On Expert Testimony And Causation In Legal Malpractice Cases – Litigation, Mediation & Arbitration

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Kenneth Feldman and Corinne Bertsche publish daily journal articles on expert opinion and causation in legal error cases

June 08, 2021

Lewis Brisbois Bisgaard & Smith LLP

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Los Angeles, California (June 2, 2021) – Kenneth C. Feldman, partner in Los Angeles and national co-chair of Lewis Brisbois’ legal error practice, along with partner in San Diego, Corinne Bertsche, recently published an article for the Daily Journal entitled “New Decisions on Expert Testimony in Legal Malpractice Cases, ”which discusses two recent decisions by the California Court of Appeals on the use of expert opinion to determine the causality of legal errors.

Mr. Feldman and Ms. Bertsche open the article by pointing out the “lack of published cases dealing with the causality of legal errors” in recent years. They then describe and analyze two recent statements by the California Fourth and Second District Appeals Courts specifically addressing this issue – O’Shea v. Lindenberg, 2021 Cal.App. Lexis 405 (April 23, 2021) and Michaels v. Greenberg Traurig, LLP, 62 Cal. App 5th 512 (2021).

O’Shea

The authors state that the Court of Appeal in the O’Shea case upheld the lower court’s judgment in favor of the defendants’ attorneys, since the plaintiff in the error of law proceedings did not provide expert opinions in an “appropriate measure” of legal certainty “that a better one in the underlying maintenance proceedings The result would have been achieved if the defendant’s lawyer had hired an expert for Rechtspflegerin. The authors found that the court stated:[w]Here the complexity of the question of causality is beyond common experience; an expert statement is required to establish causality. “The authors point out that the appellate court based its analysis on the” but for “standard on causality, the in Viner v Sweet, 30 Cal. 4th 1232 (2003) and has been used for more than 120 years.

Michaels

The authors describe that the Michaels Court of Appeal overturned the first instance court order that issued a summary judgment on the cause of malpractice in favor of the defendants’ attorneys. It came to the conclusion that the lower instance had misused its discretion in excluding expert opinions to cause and damage. The authors also note that a petition for review of the case is pending with the California Supreme Court. As such, the highest court in California can ultimately “set the reasonable standard for the admissibility of an expert opinion filed against a motion for a summary judgment / judgment.”

Author analysis

Analyzing the opinions of O’Shea and Michaels together, the authors state: “The concept that courts act as gatekeepers to prevent speculative malpractice lawsuits from being brought applies to both the summary decision / judgment phase also after trial suggest that “the O’Shea Court understood this, while the Michaels Court failed in its analysis.” Therefore, the authors ultimately conclude that the California Supreme Court should grant a review of the Michaels matter and reverse the appeal court’s decision.

Mr. Feldman, who serves as the co-chair of Lewis Brisbois’ Legal Malpractice Defense Practice, is a California State Bar certified specialist in legal error law and has served as chairman of the California State Bar’s Legal Malpractice Law Advisory Commission since 2018. He is also an author of the California Legal Malpractice & Malicious Prosecution Liability Handbook, the 8th edition of which was recently published in January 2021.

Ms. Bertsche is a member of Lewis Brisbois’ professional liability practice. She has more than 23 years of experience as a civil litigation attorney, her main practice focuses on professional liability and malpractice defense, and is a certified malpractice specialist with the California Bar Legal Specialization Board. Ms. Bertsche also handles appeals and complaints and has experience in handling economic and trade disputes.

The full article in the Daily Journal can be found here (subscription required).

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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