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3.8-5  Legal Malpractice

Revised to January 1, 2008

In a legal malpractice action, the plaintiff must prove by a preponderance of the evidence three essential elements:

  1. that the defendant, <name of defendant>, was the plaintiff's attorney in the matter of <nature of representation>;

  2. that the attorney departed from the standard of professional care owed to protect the plaintiff's legal interests in that matter; and

  3. that this departure was a legal cause of harm to the plaintiff.  I shall explain the term "legal cause" to you in more detail shortly.

[In this case, the defendant has conceded that (he/she) represented the plaintiff for the purpose of <nature of representation>.] 

[<If the defendant has not conceded that (he/she) represented the plaintiff for such purpose:>  As to the first element of legal malpractice, the defendant denies that (he/she) had an attorney-client relationship with the plaintiff regarding the transaction[s] which (is/are) the subject of the plaintiff's claim of professional negligence.

An attorney-client relationship is established when the advice and assistance of an attorney is sought and received in matters pertinent to the legal profession.  It is the obligation of an attorney to provide the legal services for which (he/she) was hired.  This duty extends only to those services within the legal profession which the attorney agreed, expressly or impliedly, to provide on behalf of the client and does not extend to the business of the plaintiff in general.

The burden is on the plaintiff to prove, by a preponderance of the evidence, that such an attorney-client relationship existed between the parties with respect to the malpractice alleged by the plaintiff.]

In an ordinary negligence action, for instance, one brought to recover damages for injuries arising out of an automobile accident, the jury does not need evidence as to the degree of care which the automobile operator should have used under the circumstances, as it is assumed that, from your own experience, you are aware of the necessary degree of care.  In a malpractice action, however, the situation, as I am sure you understand, is quite different.  Malpractice is really professional negligence.  Because jurors are probably unfamiliar with legal procedures, methods, and strategies, you obviously cannot be expected to know the demands of proper legal representation.  It is for this reason that expert testimony is required to define the standard of care or the duty owing from the lawyer to his client, whether that duty has been breached, and whether that breach of duty caused the damages the plaintiff claims, so that you can reasonably and logically conclude what the proper standard of professional care was, whether or not it was violated, and whether that violation was a legal cause of harm to the plaintiff.1

Although the standard of care is a matter of expert opinion, the determination of the facts and the measuring of the facts by the standard is for you, the jury.

The rule of law applicable in legal malpractice cases is as follows:  An attorney, in representing a client, is obligated to exercise that degree of knowledge, skill, and diligence which lawyers in Connecticut and in the same general line of practice as the defendant ordinarily have and exercise in similar cases.  You will recall that we are talking about a lawyer practicing in the field of <area of law>.

<Recite allegations.>

The plaintiff need not prove that the defendant failed to possess and use the required knowledge, skill, and diligence in all the ways alleged.  It is enough if the plaintiff proves one or more of the allegations of professional negligence, provided the plaintiff also proves that such negligence, if proven, was a legal cause of the plaintiff's damages.

The test in this case for determining what constitutes sufficient knowledge, skill, and diligence on the part of the defendant is that which attorneys ordinarily have and exercise in similar cases.  That means that the law does not expect from an attorney the utmost care and skill obtainable or known to the profession.  Furthermore, the fact that the representation was unsuccessful or the result was not as favorable as hoped by the client or the attorney raises no presumption of lack of knowledge, skill, or diligence.  Negligence and unskillfulness are not presumed.  As previously stated, the plaintiff has the burden of proof in this regard.

In order, then, to obtain a verdict against the defendant, the plaintiff must prove, by a fair preponderance of the evidence, that the defendant was the plaintiff's attorney regarding <nature of representation>; that the defendant failed to possess or exercise the knowledge, skill, and diligence ordinarily exercised by such an attorney in one or more of the ways alleged, and that that lack of knowledge, skill, and diligence was a legal cause of the plaintiff's damages.
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1 Expert testimony is not required where there is such an obvious and gross lack of care and skill that it is clear even to a layperson.  Davis v. Margolis, 215 Conn. 408, 416 n.6 (1990).  Some Superior Court opinions have held that whether the exception applies is a question of law.  Thompson v. Putnam Kitchens, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0188635 (December 7, 2004); Faulise v. Eisenstein, Superior Court, judicial district of New Britain, Docket No. CV 98 0490341 (October 30, 2000, Kocay, J.); Digioia v. Greenberg, Superior Court, judicial district of New Haven, Docket No. CV 0350406 (October 11, 1995).

Authority

DiStefano v. Milardo, 276 Conn. 416, 422 (2005); Davis v. Margolis, 215 Conn. 408, 415-416 (1990); Kregos v. Stone, 88 Conn. App. 459, 464-466, cert. denied, 275 Conn. 901 (2005); Somma v. Gracey, 15 Conn. App. 371, 379 (1988).
 


 

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