Davis v. Margolis

Citation576 A.2d 489,215 Conn. 408
Decision Date19 June 1990
Docket NumberNo. 13695,13695
CourtSupreme Court of Connecticut
PartiesCraig M. DAVIS v. Emanuel MARGOLIS.

John R. Williams, with whom, on the brief, was David B. Bachman, New Haven, for appellant (plaintiff).

Joseph F. Skelley, with whom was Alan Wein, Hartford, for appellee (defendant).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and FRANCIS X. HENNESSY, JJ.

GLASS, Associate Justice.

The principal issue in this appeal is what qualifications are necessary for an expert witness to testify in a legal malpractice case. The plaintiff, Craig M. Davis, brought a legal malpractice action against the defendant, attorney Emanuel Margolis, alleging, inter alia, that the defendant violated professional duties owed to him as a result of his consultation with the defendant. The trial began on October 18, 1988, in the Superior Court in Hartford, and ended on October 27, 1988, when the court granted the defendant's motion for a directed verdict. The trial court based its decision on the ground that the plaintiff failed to present any expert testimony which, as the plaintiff concedes, was necessary for establishing a prima facie case in his malpractice action. The plaintiff now argues on appeal that the trial court erred: (1) in refusing to permit attorney Jon L. Schoenhorn to testify as an expert witness; and (2) in refusing to allow Schoenhorn to testify as to his experience in the practice of criminal law. We conclude that, in determining whether Schoenhorn was qualified as an expert witness, the trial court should have fully considered his practical experience as it pertained to his knowledge of the standard of care applicable to the defendant's actions in this case.

The jury could reasonably have found the following facts. On June 3, 1981, the plaintiff consulted the defendant with the hope of securing his representation in connection with serious criminal charges 1 that were then pending against him. Although the plaintiff was represented by another attorney at the time, he was dissatisfied with the progress of his case, and thus decided to contact the defendant. The plaintiff's father arranged for an interview at the defendant's office, which both the plaintiff and his father attended. At the time of his interview with the plaintiff, the defendant knew of rumors that the plaintiff was considered a suspect in the murder of James W. Hafner, in which he represented the defendant, Gordon Andrew Burge. The defendant discussed this with the plaintiff, and told him that he would be unable to represent him if he discovered that he was involved in the Hafner murder. The plaintiff assured the defendant that he was not involved in that crime. Despite these assurances, during a fifteen minute period when the plaintiff's father had left the room, the defendant grilled the plaintiff about his whereabouts on the day of the Hafner murder.

At the end of the meeting, the defendant offered to represent the plaintiff for a fee of $10,000, that would have covered representation up to, but not including, trial. The plaintiff could not afford to pay that fee, and therefore declined the offer. The plaintiff then continued to be represented by his original attorney, and ultimately pleaded nolo contendere to charges of sexual assault in the first degree, kidnapping in the second degree and robbery in the third degree, for which he received a sentence of ten to twenty years imprisonment.

After the interview with the plaintiff, in the course of the trial of his client Burge, the defendant attempted to introduce evidence that he claimed would have shown that the plaintiff might actually have committed the Hafner murder. Arguing for the admission of the evidence, the defendant stated to the court that he had everything "but a smoking gun" to show that the plaintiff had committed the Hafner murder. The trial court, however, excluded the proffered evidence, and Burge was convicted. The defendant appealed Burge's conviction to this court, and again argued that he had evidence that proved that the plaintiff might have committed the crime of which his client had been convicted. This court thereafter overturned Burge's conviction; State v. Burge, 195 Conn. 232, 487 A.2d 532 (1985); in part, because of the trial court's exclusion of evidence allegedly inculpating the plaintiff. Id., 195 Conn. at 252, 487 A.2d 532.

After the plaintiff learned of the defendant's remarks in the Burge trial, he filed a grievance with the grievance committee for the Stamford-Norwalk judicial district. The grievance committee found that the defendant should have refused to interview the plaintiff, and reprimanded him for having done so. Furthermore, the plaintiff brought this action for legal malpractice, asserting that the defendant's remarks caused him to be subjected to harassment and physical and psychological harm while he was in prison. The plaintiff's complaint alleged that the defendant breached a series of duties owed by an attorney to his client. In particular, the complaint alleged that the defendant breached his duty of loyalty to the plaintiff, and breached his duty to avoid conflicts of interest. 2

At trial, both sides agreed that, in order to prevail, the plaintiff needed to present expert testimony that the defendant's actions violated an applicable standard of care. 3 In an attempt to satisfy this expert testimony requirement, the plaintiff offered the testimony of Schoenhorn. In his disclosure of expert witness memorandum, the plaintiff stated: "Attorney Schoenhorn will testify to the prevailing standard of care of attorneys in [the defendant's] specialty in the prevailing legal community. He will further testify that [the defendant] by having a confidential discussion protected by the attorney/client relationship with the plaintiff and thereafter representing Mr. Burge in the manner set forth in the complaint failed to exercise the degree of skill and diligence [that] other attorneys in his legal community possess and practice. Attorney Schoenhorn's opinion will be based on his training and experience and the practice of law in general and in particular in his practice of criminal law." Moreover, the plaintiff disclosed that Schoenhorn's testimony would be based, in part, on his review of certain files and documents relevant to the case.

Schoenhorn testified that he had extensive experience as a criminal lawyer in Connecticut, and that he had previously testified as an expert witness in a case involving the effectiveness of representation provided by a criminal defense lawyer. In addition, he testified that he had studied legal ethics while in law school and in preparation for the bar examination. The trial court, however, sustained objections to the following questions that the plaintiff's attorney posed to Schoenhorn in an effort to demonstrate Schoenhorn's knowledge of the applicable standard of care: (1) "And can you tell us approximately how many criminal cases you have tried to verdict as of today?"; and (2) "Can you tell us approximately how many [appeals you have argued]?" The plaintiff's attorney argued that the plaintiff was entitled to show Schoenhorn's background in an effort to qualify him as an expert. The trial court held that he could do so only "in regard to the ethical questions." The trial court stated: "What's [Schoenhorn's] background that gives him an expertise in establishing what the standard of care is in the state of Connecticut for lawyers who are consulted by clients, what's their standard of care of loyalty to that client."

The plaintiff's attorney then once again attempted to introduce Schoenhorn's appellate experience to qualify him as an expert. The plaintiff's attorney argued that Schoenhorn had argued many appeals, and stated further: "I'm willing to show that one or more of those appeals dealt with conflict of interest questions in the criminal context. In fact, further, that in the case of State versus Buckley, one of the issues in that appeal which he argued and briefed had to do with whether a lawyer in the State's Attorney's office who had previously represented Mr. Buckley how he could not have in any way have any part in the prosecution of the matter because of a conflict of interest. And further, the issue arose as to whether the entire office of the State's Attorney would have to be disqualified because of this prior representation. That's what we have here is a case of prior representation. What is the duty owed by a lawyer to somebody who[m] he previously represented in this case, represented for purposes of a consultation and the hiring or maintaining that lawyer to deal with a specific criminal case. [Those are] the additional grounds for bringing out [Schoenhorn's] appellate experience in this matter, your Honor."

In its further colloquy with counsel, the court stated: "Now an expert in my view is a fellow who has more experience than the run-of-the-mill people. He knows a little better than just any lawyer in off the street. He's got some particular expertise in this field of legal ethics. Like in a case we had some years ago, Professor Hazard 4 was brought here ... to testify in regard to ethics. Well, there's a fellow that's got a background from here to China in ethics, he's taught it, studied it, researched it, testified. What have we got from Mr. Schoenhorn that's not comparable to that, but of that kind? Did he teach law school ethics? Did he have particular training, go to special seminars in ethics? They have them. What did he do that makes him special in this area ... I don't care about his background in criminal law. There's a lot of criminal lawyers who are not experts in ethics, there's a lot I'm sure who are. But criminal does not make ethical, per se, just like a lot of lawyers practice criminal law which is heavily involved with the United States Constitution and they don't pay a lot of attention to the United...

To continue reading

Request your trial
65 cases
  • Dipietro v. Farmington Sports Arena Llc., No. 29175.
    • United States
    • Connecticut Court of Appeals
    • September 14, 2010
    ...regarding the expert's qualifications properly go to the weight, and not to the admissibility, of his testimony.” Davis v. Margolis, 215 Conn. 408, 416-17, 576 A.2d 489 (1990). “The underlying principle is that if any reasonable qualifications can be established, the objection goes to the w......
  • Grayson v. Wofsey, Rosen, Kweskin and Kuriansky
    • United States
    • Connecticut Supreme Court
    • August 23, 1994
    ...[and that conduct has] result[ed in] injury, loss, or damage to the [client]"; (internal quotation marks omitted) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990); the client is entitled to a recovery against the attorney. Accordingly, like the majority of courts that have address......
  • Santopietro v. City of New Haven
    • United States
    • Connecticut Supreme Court
    • August 27, 1996
    ...with the result of injury, loss, or damage to the recipient of those services." (Internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). As Brennan testified, he possesses specialized knowledge as an umpire that is greater than the average person's kno......
  • State v. Daniel W., AC 39844
    • United States
    • Connecticut Court of Appeals
    • March 6, 2018
    ..."may emanate from a myriad of sources, such as teaching, scholarly writings, study or practical experience." Davis v. Margolis , 215 Conn. 408, 417, 576 A.2d 489 (1990). Moreover, "[i]t is not essential that an expert witness possess any particular credential, such as a license, in order to......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT