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Andrews v. Saylor9/25/2003
decision, the jury's answer to the question of who more likely than not should have prevailed had an appeal been taken does not change the result in the earlier lawsuit and does not establish binding legal precedent in future lawsuits. See Rodriguez v. Horton, 95 N.M. 356, 360, 622 P.2d 261, 265 (Ct. App. 1980) (rejecting the argument that a legal malpractice claim amounts to a collateral attack on the underlying judgment).
We see no need for treating legal malpractice any differently than other types of professional malpractice. Although a district judge, as a lawyer, will have a general knowledge of the law and likely will have expertise in some areas, no lawyer is presumed to know all the law, much less to be an expert in every area of the law. Cleckner v. Dale, 719 S.W.2d 535, 542 (Tenn. Ct. App. 1986). We are confident that a jury, aided by the testimony of experts versed in the relevant area of the law, is capable of making a prediction as to the outcome of a hypothetical appeal with the degree of certainty required by a preponderance-of-the-evidence standard of proof. Charles Reinhart Co. v. Winiemko, 492 N.W.2d 505 (Mich. Ct. App. 1992), rev'd, 513 N.W. 2d 773 (Mich. 1994). We are concerned that our adoption of a special rule that insulates malpracticing lawyers from jury scrutiny of their conduct would give the public the impression that we are simply lawyers protecting other lawyers. Millhouse v. Wiesenthal, 775 S.W.2d 626, 629 (Tex. 1989) (Mauzy, J., dissenting) (observing that "to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar"; arguing that " he privilege of being an attorney should not carry with it immunity from the jury system"). We therefore hold that in a legal malpractice action, the issue of proximate cause is a question of fact for the jury, and this is so even when proximate cause depends upon whether or not an appeal would have been successful.
Defendants also argue that treating the issue of proximate cause as a question of fact will lead to the introduction of expert testimony in violation of the principle that "expert opinion testimony that seeks to state a legal conclusion is inadmissible." State v. Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259 (1994). Clifford and the other cases relied upon by Defendants are not legal malpractice cases. Contrary to Defendants' position, New Mexico case law recognizes that in legal malpractice cases expert testimony is admissible to establish that an attorney breached the standard of care and that the breach resulted in damage to the client. Rancho del Villacito Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 56, 908 P.2d 745, 749 (1995) (observing that plaintiff could have called expert witnesses to establish that defendant attorney's advice to plaintiff as to legal implications of proposed course of conduct fell below the standard of care and resulted in damage to plaintiff).
In the present case, the district court decided the issue of proximate cause by ruling as a matter of law that an appeal inevitably would have succeeded. In doing so, the district court usurped the jury's function as factfinder.
2. The Summary Judgment Must Be Reversed
Plaintiff's theory of negligence, as alleged in her complaint, is that attorney Scarborough breached the applicable standard of care by not advising Plaintiff that Plaintiff had a community property interest in Stephen's PERA benefits and by failing to include a provision in the final decree awarding Plaintiff her share of those benefits. Defendants' motion for summary judgment was limited to th
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