The Risk Manager, Winter 2007

By Retired Judge Stan Billingsley

This article is one of a series that LawReader.com has agreed to provide for Lawyers Mutual’s newsletter as a bar service. LawReader.com provides Internet legal research service specializing in Kentucky law.

When you accept a personal injury case, you represent to the client your ability and willingness to prepare the case according to the lawyer’s standard of care. If your client is unhappy with your results, you may find yourself having to convince a jury that you met this burden and are not guilty of malpractice. Since it is well established that representing plaintiffs in personal injury cases is the area of practice most likely to result in a malpractice claim, it is critical to understand what the lawyer’s standard of care is for obtaining expert witnesses for these cases.

The standard of care for Kentucky lawyers is well established and can be succinctly described as follows:

• “An attorney is liable to his client for the want of such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment.” Humboldt Bldg. Assn. Co. v. Ducker's Exr., 111 Ky. 759, 64 S.W. 671 (1901).
• “... the standard of care is generally composed of two elements - care and skill. The first has to do with care and diligence which the attorney must exercise. The second is concerned with the minimum degree of skill and knowledge which the attorney must display....the attorney's act, or failure to act, is judged by the degree of its departure from the quality of professional conduct customarily provided by members of the legal profession.” Daugherty v. Runner, Ky, 581 S.W.2d 12 (1979).
• “Determining the reasonableness of the lawyer's conduct requires consideration of the following criteria: the requisite skill and knowledge; the degree of skill and knowledge to be possessed and exercised; the effect of local considerations and custom; and any special abilities possessed by the lawyer.” (15.2, The Standard of Care Defined, 1 Legal Malpractice 856 (3rd Ed) (1989).

Meeting this standard of care in personal injury cases has risen over the years because they often turn on the testimony of highly paid, dueling expert witnesses. Lawyers must recognize that many personal injury claims require the lawyer to advance a great deal of money for depositions and expert witnesses to meet the standard of care. If theXYZ Insurance Co. hires two high powered medical experts to contest the testimony of your client’s general practitioner family physician on a medical issue, you are going into court at a distinct disadvantage. You may be falling well below the standard of care that is commonly exercised by personal injury lawyers with the financial resources to fund these cases properly.

The prevailing standard of care for a personal injury case, in my opinion, requires that you come to court with substantial expert testimony to support your client’s claim. You should never file suit until you have determined that credible expert witnesses will support the claim. If the statute of limitations is about to run, get a tolling agreement rather than file a suit anticipating that expert witnesses will be available when needed. It is important to note that more than one lawyer, thinking he has a solid expert witness for a case, has been blindsided after filing suit by an expert refusing to testify or testifying in a dramatically less helpful way than anticipated based on pre-suit interviews. The medical profession especially is proactive in defending medical malpractice claims. There is often peer pressure on potential doctor experts not to cooperate and doctors are quick to sue for malicious prosecution when a personal injury case involving a doctor’s malpractice falls apart. Always document the file thoroughly on your efforts to obtain qualified expert witnesses and their opinions that caused you to determine that they were suitable for the issues in the case.

Going to court with a poorly prepared case because of the inability to fund expert witnesses places you at risk of a disappointed client who will look to you to make up his loss from your malpractice insurance policy. The best risk management is first, avoid weak cases. Second, decline cases when the statute of limitations is about to run and there is not enough time to investigate the case and identify credible expert witnesses. In those cases taken, if you or your client cannot afford the necessary experts, form a relationship with another lawyer specializing in personal injury cases with the resources to retain expert witnesses. This often is the only way to meet the standard of care that competent representation in a personal injury case requires and avoid a malpractice claim.