Walker v. Bangs
| Decision Date | 01 November 1979 |
| Docket Number | No. 44936,44936 |
| Citation | 92 Wn.2d 854,601 P.2d 1279 |
| Court | Washington Supreme Court |
| Parties | Eddie R. WALKER, Appellant, v. Gerald BANGS, Truman R. Castle, John Harvey Bright, Richard W. Hart, Thomas Hugh Murphy, Thomas Allan Prediletto, Individuals, Bangs, Castle, Hart, Prediletto and Murphy, a partnership, Bangs, Castle, Hart, and Murphy, a partnership, Respondents. |
Schroeter, Goldmark & Bender, P. S., John Goldmark, Seattle, for appellant.
McMullen, Brooke, Knapp & Alexander, Eugene H. Knapp, Jr., Seattle, for respondents.
This case involves allegations of negligence against attorneys Bangs and Castle in their handling of plaintiff Walker's personal injury action in federal court. Bangs and Castle counterclaimed for funds advanced Walker in the personal injury action. In the course of the malpractice trial in the King County Superior Court, plaintiff offered as an expert witness a lawyer not admitted to practice in this state. The trial court sustained defendants' objection to the qualification of the witness and rejected plaintiff's offer of proof of proposed testimony. Plaintiff's subsequent motion for a mistrial was denied and thereafter defendants' motion to dismiss for failure to prove negligence was granted. We accepted direct review pursuant to RAP 4.2. We reverse the trial court.
Walker alleges defendants negligently prepared and conducted his personal injury action in federal court, Western District of Washington, within the supervision of the Ninth Circuit Court of Appeals. The case involved injuries sustained by Walker in the course of his employment as a longshoreman while loading a ship at Aberdeen. Bangs and Castle represented Walker in his third-party action against the ship, alleging unseaworthiness for failure to provide a safe method of loading cargo. The case was tried to the court sitting without a jury in May of 1972. The federal trial judge found for the ship on the issue of liability and dismissed the action.
October 1973, plaintiff brought the instant malpractice action alleging defendants were professionally negligent in a number of respects. To establish liability, plaintiff originally intended to call as an expert witness an experienced trial lawyer from Portland, Oregon. Within a week or 10 days of the scheduled trial date, however, plaintiff's attorney was informed that the intended expert would not appear. Plaintiff's motion for a continuance of the trial date was, in effect, denied.
With little time remaining to obtain another expert witness, attorney Allan Brotsky, a graduate of Columbia University Law School, was brought to plaintiff's attention. As a member of the New York and California bars and of the Association of Trial Lawyers of America, Brotsky practices before the San Francisco Federal District Court and the Ninth Circuit Court of Appeals. He has been engaged in trial practice in San Francisco since 1947, specializing in personal injury litigation, and he has tried maritime personal injury cases similar to plaintiff's in federal district court. For the past 15 years he has been involved in teaching trial practice, and at the time plaintiff sought his assistance, he was serving as a visiting professor at the University of Puget Sound School of Law.
Brotsky is not admitted to practice law in the state of Washington. When plaintiff offered him as an expert witness, defendants objected on the ground that he was not admitted to practice in this state:
a person who is not licensed to try, would not be allowed to try a lawsuit in this state, has never tried a lawsuit in this state, has never seen a lawsuit tried to completion in this state cannot qualify as an expert.
The trial court sustained defendants' objection and refused to allow Brotsky to testify:
I think my ruling must be . . . that this witness does not qualify technically as an expert witness in the context in which he is offered.
As I say, he has all kinds of rather impressive credentials. But as I address myself to what seems to be the very center of this question, the traditional view of a legal expert, . . . although this was a case presented in federal court, that reference must be made to state substantive law, . . . that this witness is not a member of this bar, which means he has not been tested and found to be bearing the minimum legal knowledge which the public insists that an individual have before he takes upon himself the responsibility of carrying a matter to trial on behalf of a client . . .
The court rejected plaintiff's offer of proof of the substance of Brotsky's proposed testimony. Plaintiff continued to present a "skeletal" case and on the following day moved for a mistrial, claiming the exclusion of his expert made it impossible for him to proceed. This motion was denied. The trial court granted defendants' motion for dismissal with prejudice because plaintiff failed to prove negligence.
The weekend intervened, and on Monday plaintiff moved to reopen the evidence to admit a partial transcript of the federal court case. Defendants objected on the grounds that the motion was untimely and the request for a partial transcript was piecemeal. The trial court refused to admit the partial transcript.
The case proceeded on defendants' counterclaim for funds advanced Walker in the federal district court action. The jury returned a verdict for defendants in the sum of $573.10. A judgment was entered on this verdict from which no appeal has been taken. On appeal, error was assigned to: (1) the trial court's refusal to admit Brotsky's testimony, "the only expert . . . then available"; and (2) the trial court's refusal to admit into evidence the transcript of the trial in federal district court proffered by plaintiff.
We perceive the principal issue to be whether admission to practice law in this state is a mandatory threshold qualification for one who proposes to testify as an expert on the standard of care applicable to attorneys litigating a maritime personal injury claim in a federal district court situated in this state. We conclude that it is not.
Law is admittedly a highly technical field beyond the knowledge of the ordinary person. Lynch v. Republic Publishing Co., 40 Wash.2d 379, 389, 243 P.2d 636 (1952). By its very nature, an action for professional negligence in the preparation and conduct of specific litigation involves matters calling for special skill or knowledge proper subjects for expert testimony. See Lynch v. Republic Publishing Co., supra. See also ER 702. A few courts have held that expert testimony on the standard of care is Mandatory to establish a prima facie case of legal malpractice. See e. g., Dorf v. Relles, 355 F.2d 488 (7th Cir. 1966); Walters v. Hastings, 84 N.M. 101, 500 P.2d 186 (1972); Baker v. Beal, 225 N.W.2d 106 (Iowa 1975). The general rule is to permit but not require expert testimony. See Admissibility And Necessity Of Expert Evidence As To Standards Of Practice And Negligence In Malpractice Action Against Attorney, Annot., 17 A.L.R.3d 1442 (1968).
This case involves allegations of negligence pertaining to trial tactics and procedure, matters frequently difficult to prove. See R. Mallen & V. Levit, Legal Malpractice, § 345 (1977). Further, the case involves a maritime claim, a special area of practice. While expert testimony is not necessary when the negligence charged is within the common knowledge of lay persons, we believe that expert testimony was both proper and necessary in this instance.
The qualifications of an expert witness to testify on a particular subject are determined by the trial court within its sound discretion. Wilson v. Wright, 52 Wash.2d 805, 812, 329 P.2d 461 (1958). If the reasons for admitting or excluding the opinion evidence are "fairly debatable", the trial court's exercise of discretion will not be reversed on appeal. Hill v. C. & E. Constr. Co., 59 Wash.2d 743, 746, 370 P.2d 255 (1962). Under the conclusion we reach herein, the reason for excluding the proffered testimony of Allan Brotsky is not "fairly debatable".
After reviewing the record and the trial court's ruling on the qualifications of Brotsky, we find the stated basis for the rejection of the proffered testimony to be the fact that he was not admitted to the Washington bar. We hold that a lawyer not admitted to the Washington bar is not, per se, unqualified as an expert witness in a legal malpractice action in this state. In the instant case, the fact that Allan Brotsky is not licensed to practice in this state should go to the weight, not the admissibility of his testimony, assuming he is otherwise qualified.
The standard to which a lawyer is held in the performance of professional services is "that decree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction." Cook, Flanagan & Berst v. Clausing, 73 Wash.2d 393, 395, 438 P.2d 865, 867 (1968), citing Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144, 45 A.L.R.2d 1 (1954) and Theobald v. Byers, 193 Cal.App.2d 147, 13 Cal.Rptr. 864, 87 A.L.R.2d 986 (1961). If the geographical parameters of the standard of care are limited to "the practice of law in this jurisdiction", defendants argue this in turn limits the geographical area from which expert testimony may be produced. We do not find this persuasive in the instant circumstances.
The matter which Bangs and Castle litigated for Walker in a federal district court was a federally created cause of action. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The substantive rules of maritime law apply to the action. Scudero v. Todd Shipyards Corp., 63 Wash.2d 46, 385 P.2d 551 (1963). The trial was governed by federal rules of procedure and evidence. Pope & Talbot, Inc. v. Hawn, 346...
To continue reading
Request your trial
-
State v. Prado
...the trial court's exercise of its discretion. State v. Simon, 64 Wn. App. 948, 963, 831 P.2d 139 (1991) (quoting Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979)), rev'd in part on other grounds by 120 Wn.2d 196, 840 P.2d 172 (1992). ER 702 allows qualified experts to testify regard......
-
State v. Yates
...125 Wash.2d 24, 69, 882 P.2d 747 (1994); State v. Swan, 114 Wash.2d 613, 655, 790 P.2d 610 (1990); see also Walker v. Bangs, 92 Wash.2d 854, 858, 601 P.2d 1279 (1979) (stating that, "[i]f the reasons for admitting or excluding the opinion evidence are `fairly debatable,' the trial court's e......
-
Spencer v. Badgley Mullins Turner, PLLC
...matter asserted but, rather, to demonstrate what evidence was presented in the underlying case proceedings. See Walker v. Bangs, 92 Wash.2d 854, 861-62, 601 P.2d 1279 (1979) (transcript of original trial is the most trustworthy evidence of events that transpired in the underlying lawsuit). ......
-
Clark Cnty. Fire Dist. No. 5 & Am. Alt. Ins. Corp. v. Bullivant Houser Bailey P.C.
...“allegations of negligence pertaining to trial tactics and procedure [are] matters frequently difficult to prove.” Walker v. Bangs, 92 Wash.2d 854, 858, 601 P.2d 1279 (1979). ¶ 55 Although plaintiffs' counsel's comments may have been improper, they were fairly vague. Counsel did not express......
-
Table of Cases
...denied, 113 Wn.2d 1025 (1989): 4.2(1), 13.7(5)(f) Walberg v. Mattson, 38 Wn.2d 808, 232 P.2d 827 (1951): 13.4(8)(b) Walker v. Bangs, 92 Wn.2d 854, 601 P.2d 1279 (1979): 2.4(1) Walker's Estate, In re, 10 Wn.App. 925, 521 P.2d 43 (1974): 10.3(1) Wash. Builders Benefit Tr., In re, 173 Wn.App. ......
-
§2.4 Ethical Considerations in Estate Planning, Probate, and Trust Administration
...advice related to fiduciary administration, unless a distinction needs to be drawn. (1) Competence of lawyer Quoting from Walker v. Bangs, 92 Wn.2d 854, 859, 601 P.2d 1279 (1979), in Stangland v. Brock, 109 Wn.2d 675, 682, 747 P.2d 464 (1987), the Washington Supreme Court confirmed the gene......
-
§43.6 Analysis
...to exclude evidence that would otherwise be admissible if its prejudicial nature outweighs its probative value. Walker v. Bangs, 92 Wn.2d 854, 601 P.2d 1279 (1979); ER Counsel must generally limit cross examination to the scope of the direct examination, subject to the trial court's discret......
-
§46.7 Significant Authorities
...offered evidence so that the court may judge its admissibility; and (3) creates a record adequate for appellate review. Walker v. Bangs, 92 Wn.2d 854, 861, 601 P.2d 1279 (1979). The offer must be specific enough for the court to evaluate the evidence. Offering a copy of a deposition falls f......