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What is a Legal Malpractice Expert Witness?

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  • Written By: Erin J. Hill
  • Edited By: Bronwyn Harris
  • Last Modified Date: 28 August 2019
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    Conjecture Corporation
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A legal malpractice expert witness is someone with direct knowledge about legal malpractice. This knowledge generally comes from specialized training or experience. In a legal malpractice case, the expert witness is often a judge or attorney, often those who handle similar cases in their own practices. They are called upon during a malpractice case to give testimony that may be beneficial to either side by offering their expert opinion on certain aspects of the case.

Legal malpractice usually refers to a lawsuit filed against an attorney with the claim that he or she acted negligently or unprofessionally while representing a client. This type of case usually occurs when the behavior resulted in the client losing his or her case, or when crucial facts were not discovered or divulged in order for the client to make an important legal decision. For instance, if an attorney performed a title search and found no issues, his or her client may have bought a property. If this property later is discovered to have liens or other issues against the title that the attorney missed, the client could file a malpractice suit.

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The role of a legal malpractice expert witness is generally to provide inside information on handling legal cases. He or she will have knowledge on proper legal etiquette and behavior in the type of situation being discussed. For example, in the aforementioned case of the title attorney, another lawyer who routinely does similar work may be used as the expert witness. He or she can provide information on proper protocol for performing a title search and shed light on anything the defendant may have done differently, or give his or her opinion of the defendant's actions.

Many cases that require the use of a legal malpractice expert witness are more serious than a botched title search, but the purpose is generally the same. In order to become an expert witness, the person needs to provide proof that he or she has the inside knowledge, experience, and skills required to provide accurate information. He or she may also be required to speak with the opposing attorney to determine if he or she is able to discuss things in language that would be easy for a jury to understand and to ensure that he or she is likable and doesn't become nervous during questioning.

A legal malpractice expert witness also must prove that he or she has no ties to either the plaintiff or defendant. This means that the witness does not have a bias against either party. If choosing another attorney, it may be advisable to choose someone who practices outside of the area where the trial is taking place.

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