Leibel v. Johnson

• Decision Date: 18 June 2012
• Docket Number: No. S11G0557.,S11G0557.
• Citation: 728 S.E.2d 554,12 FCDR 1888,291 Ga. 180
• Parties: LEIBEL et al. v. JOHNSON.
• Court: Georgia Supreme Court

291 Ga. 180

728 S.E.2d 554

12 FCDR 1888

LEIBEL et al.

v.JOHNSON.

No. S11G0557.

Supreme Court of Georgia.

June 18, 2012.

Michael J. Goldman, Christine Lupo Mast, Joseph Hall Wieseman, Hawkins Parnell Thackston & Young LLP, Atlanta, for appellant.

Richard L. Brittain, Wendell Raleigh Bird, Bird, Loechl, Brittain & McCants, Atlanta, Jenny Elizabeth Jensen, Richard Earl Harris, Jones, Jensen & Harris, Norcross, for appellee.

MELTON, Justice.

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, 307 Ga.App. 32, 703 S.E.2d 702 (2010). In reaching its decision, the Court of Appeals upheld the admissibility of testimony by Johnson's expert on the issue of causation. Specifically, in Division 2, the Court of Appeals concluded that, in a legal malpractice action, the plaintiff must show that “but for the attorney's negligence in the underlying case, the plaintiff would have prevailed,” and that, although a party cannot generally bolster his case with expert testimony as to the ultimate issue when the jury could reach the same conclusion independently of the opinion of others, such a prohibition does not extend to those cases in which a jury requires expert testimony as to the issue of causation. Id. at 38(2), 703 S.E.2d 702. Citing the pattern jury instruction on legal malpractice claims,¹ the Court of Appeals then concluded that expert testimony is “admissible to prove proximate cause in those legal malpractice cases in which a lay person could not competently determine whether or not the negligence of the attorney proximately caused the plaintiff's damages, i.e., whether or not the plaintiff would have prevailed in the underlying action.” Id., citing Ross v. Edwards, 253 Ga.App. 773, 774, 560 S.E.2d 343 (2002).² This Court granted Leibel's petition for certiorari to assess the propriety of the Court of Appeals' ruling, and, for the reasons that follow, we reverse.

“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., 265 Ga. 374, 375(2)(a), 453 S.E.2d 719 (1995). The first element is not in dispute in the present case, and,

[w]ith respect to the ‘ordinary care, skill and diligence’ element, the law imposes upon persons performing professional servicesthe 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, 138 Ga.App. 849, 853, 227 S.E.2d 802 (1976). This does not mean, however, that expert testimony would also be appropriate with respect to the third and final element of the test, causation.

In order to establish the final element, “[t]he plaintiff must show that, but for the attorney's negligence in the underlying case, the plaintiff would have prevailed.” (Citation omitted.) Blackwell v. Potts, 266 Ga.App. 702, 705(1), 598 S.E.2d 1 (2004). In this sense,

[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...