4 After a jury returned a verdict for Dr. Mary Johnson on her legal malpractice claim against Steven K. Leibel, Leibel filed a motion for JNOV and a motion for new trial. The trial court denied the motion for JNOV, but granted the motion for new trial. Both parties appealed, and the Court of Appeals reversed the grant of Leibel’s motion for new trial but affirmed the denial of the motion for JNOV. See generally Johnson v. Leibel,
“In a legal malpractice action, the plaintiff must establish three elements: ‘(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.’ ” (Citations omitted.) Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C.,
[w]jth respect to the “ordinary care, skill and diligence” element, the law imposes upon persons performing professional services the duty to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed by their respective professions under similar conditions and like surrounding circumstances.
(Citations, punctuation and emphasis omitted). Id. Because the second element of the test involves answering the question whether certain professional standards have been met, “except in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct [for an attorney], a significant deviation from which would constitute malpractice.” (Citations omitted.) Berman v. Rubin,
[t]o establish causation and injury in a legal malpractice action, the plaintiff is often compelled to prove the equivalent of two cases in a single proceeding or what has been referred to as a “suit within a suit.” . . . There must first be a determination that the lawyer was negligent, that is, whether he or she violated the duty to exercise a reasonable degree of professional care, skill, and [diligence]. If the jury determines that the lawyer fulfilled this standard of care, that ends the case. If, however, the jury determines that the lawyer was negligent, the case moves on to the second phase, the so-called “suit within a suit,” to determine whether the client was, in fact, damaged by that negligence. Thus, the ultimate goal of the “suit within a suit” is to determine what the outcome should have been if the issue had been properly presented in the first instance. That determination, however, does not require that the jury in the malpractice action determine what the actual jury in the underlying action would have done; rather, the second jury is to determine what a reasonable jury would have done if the case had been tried differently. Thus, the jury in the malpractice action is permitted to substitute its own judgment for that of the jury in the underlying action.
(Citations and punctuation omitted; emphasis in original.) Cook v. Continental Casualty Co.,
As shown above, contrary to the Court of Appeals’ reasoning, the second jury in the malpractice case is not deciding what the first jury would have done in the underlying case had the attorney not been negligent, but only what a reasonable jury would have done had the underlying case been tried without the attorney negligence alleged by the plaintiff. The second jury does this by independently evaluating the evidence in the underlying case as it should have been presented to determine whether it believes that the plaintiff has a winning case, not by deciding whether some prior jury may or may not have believed that the plaintiff had a winning case. See Cook, supra. In this connection, the Court of Appeals was incorrect in its conclusion that the jury in the malpractice case was tasked with deciding an issue that could not be resolved by the average lay person. Because the jury
Judgment reversed.
Notes
See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.), § 62.400 (“A client suing his/her attorney in a case not only must prove by expert legal testimony that the claim was valid and would have resulted in a judgment in the client’s favor, hut also that the judgment would have been collectible in some amount.”).
Given the purported ‘legal complexities” associated with Johnson’s underlying discrimination claims against her former employer, Scottish Rite Hospital (which formed the basis of the failed lawsuit prosecuted by Leibel on Johnson’s behalf), the Court of Appeals found no abuse of discretion in the trial court’s decision to allow the expert’s challenged testimony that the evidence of pretext “tipped the balance” of the case in Johnson’s favor. Johnson, supra,
Again, Dr. Johnson’s expert testified that, in his opinion, the evidence in the underlying discrimination lawsuit “tipped the balance” in Dr. Johnson’s favor. This was clearly testimony that went directly to the issue of what the first jury in the underlying case allegedly would have done. As explained above, this was inappropriate.