In a reversal of the more common pattern, in this case a doctor sued a lawyer for malpractice. In Barkal v. Gouveia & Associates, Dr. Barkal sued Gordon Gouveia, a bankruptcy lawyer in Munster, for “1) failing to advise Dr. Barkal against filing a Chapter 13 bankruptcy; 2) waiving an evidentiary hearing to support a motion for turnover; and 3) failing to advise or take any additional action once the Chapter 13 bankruptcy was dismissed.”
Gouveia moved for summary judgment arguing that Barkal had no expert testimony to prove that Gouveia had breached the standard of care. Barkal failed to hire an expert but sought to rely on the deposition testimony of two experienced bankruptcy lawyers, David Welch and Mark Zuckerberg, who had been involved in the case. They responded to certain questions in their depositions but denied reviewing the file sufficient to offer expert opinions on the standard of care.
In light of this testimony, the Court of Appeals held:
Accordingly, while Attorneys Welch and Zuckerberg may be well versed in bankruptcy, here, in the absence of having reviewed the appropriate documentation, their knowledge cannot assist “the trier of fact to understand” whether Attorney Gouveia committed legal malpractice when representing the Barkal Entities in the Chapter 13 proceedings. See Evid. R. 702(a)
Alternatively, Barkal argued that Gouveia’s purported breach of the standard of care fell within the common knowledge exception to the expert testimony requirement. The Court of Appeals made short shrift of this argument:
While the common knowledge exception is a generally accepted deviation from the requirement of expert testimony in a legal malpractice case, it is very limited and applies solely in cases of obvious and transparent malpractice. In Storey v. Leonas, 904 N.E.2d 229, 238 (Ind.Ct.App.2009), reh’g denied, trans. denied, we characterized the exception as “when the question is within the common knowledge of the community as a whole or when an attorney’s negligence is so grossly apparent that a layperson would have no difficulty in appraising it.” The vast array of federal rules regulating the bankruptcy landscape can be daunting at times, even for a legal professional. The relative wisdom of pursuing relief under Chapter 13 of the Bankruptcy Code versus a different chapter based on the facts presented is certainly not within the “common knowledge” of the community as a whole and rather requires the knowledge, training, and expertise of an expert in the field.
Accordingly, summary judgment in favor of the lawyer was affirmed.
- If you’re going to rely on a fact witness to offer expert opinions, make sure that he or she has reviewed the necessary information.
- The common knowledge exception is a narrow one and not likely to be applied in a specialized area like bankruptcy.