Wednesday, March 26, 2008
Legal malpractice expert witness who is retired judge criticized the defendant's handling of the case but forgot to state her legal work did not meet the standard of care, summary judgment affirmed. Wolski v. Wandel, S-06-1039, 275 Neb. 266Mentally disabled adult sued his former attorney for obtaining an unfavorable settlement in a declaratory judgment action regarding Cass County farm ground that his parents had deeded to him and later to another person ambiguously identified as a "trustee." The plaintiff's attorney negotiated a settlement for the disabled client to have a life estate. Later the plaintiff sued his former attorney for malpractice. The court granted the attorney's motion for summary judgment based on the depositions of the defendant and an experienced probate and estate attorney that she met the standard of care. The District Court granted summary judgment for the defendant attorney. Nebraska Supreme Court affirms summary judgment finding the plaintiff's expert was critical of the defendant's handling of the case, it did not state his opinion that the defendant breached her standard of care. Legal malpractice plaintiff's expert witness was retired Sarpy County District Judge Reagan who thought the case "should have been tried." "Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact. Reagan’s testimony falls short of this objective. Although Reagan expressed criticism of certain aspects of Wandel’s representation, he did not specifically opine that her performance deviated from the applicable standard of care. In a medical malpractice case, we have held that an expert’s testimony that a surgical procedure should have been performed in a different manner did not constitute evidence that the defendant had departed from the applicable standard of care in performing the surgery in the way that he did.13 We noted that if the expert believed that there had been a deviation from the standard of care, “it would have been a simple matter . . . to have said exactly that.”14 R eagan’s “criticism” of Wandel was similarly insufficient as evidence of professional negligence. At most, R eagan’s testimony establishes that his evaluation of the underlying case differed from that of Wandel. It is not uncommon for lawyers to have differing views about the merits of a contested case, and such a difference of opinion between lawyers does not necessarily mean that one of them has been negligent in evaluating the case. R eagan’s testimony does not establish that Wandel’s professional performance fell below that expected of lawyers of ordinary skill and capacity under similar circumstances.