Panel04.30.2020

David Atkins to Speak at ABA National Legal Malpractice Conference

Precluding a Plaintiff's Expert in the Case-within-a-Case
3:15 p.m.
The Roosevelt New Orleans

David Atkins, chair of Pullman & Comley's Professional Liability practice, will speak at the ABA's Spring 2020 National Legal Malpractice Conference on April 30 in New Orleans.  The topic is "Precluding a Plaintiff's Expert in the Case-within-a-Case."

In the awkward contrivance known as the case-within-the-case portion of a legal malpractice action, defense counsel face multiple challenges, particularly in convincing a court to dismiss or limit the claims in advance of trial. One fruitful avenue is motion practice aimed at excluding the plaintiff's attorney expert witness on the required elements of causation and damages.

This session will identify arguments courts have accepted in precluding plaintiffs' expert opinion testimony on causation, including in "settle and sue" actions; arguments that, if successful, can subject a plaintiff's claims to summary disposition.

The panelists will examine the nuts and bolts of crafting such pre-trial challenges by addressing: (1) whether the plaintiff's attorney expert witness is required or even permitted to tell the jury what outcome it should reach in the case-within-the-case phase; (2) whether an expert’s opinion is "based on sufficient facts" within the meaning of Fed. R. Ev. 702 or is merely a speculative "net opinion;" and (3) whether such an expert is permitted to provide opinions on questions of law such as the enforceability of a contract. The program also will address challenges to a plaintiff's expert witness where the claimed malpractice arises from a non-litigation engagement and attacking a plaintiff's claim for a jury trial when the underlying matter did not qualify for a jury (e.g. matrimonial, administrative).

David Atkins, Member, Pullman & Comley LLC, Bridgeport, CT
Noah Fiedler, Partner, Hinshaw & Culbertson LLP, Milwaukee, WI
Melissa Mickey, Staff Attorney-Knowledge Manager, ALAS, Chicago, IL

For more information or to register for the conference, please visit the conference website here.

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