You'd Better Have A Real Expert If You Are Making A Malpractice Claim In The North Carolina Business Court

You'd Better Have A Real Expert If You Are Making A Malpractice Claim In The North Carolina Business Court

The Business Court dismissed a legal malpractice claim right before Thanksgiving last week in Inland American Winston Hotels, Inc. v. Winston, 2010  NCBC 19Judge Tennille found Plaintiff's expert, a  Duke Law School professor, to be incompetent to testify to the Defendant lawyer's alleged breach of his duty of care.

The claimed malpractice concerned the lawyer's work on a commercial real estate transaction by which the Plaintiff acquired an entity from the Defendant and by which an entity controlled by the Plaintiff was substituted as the purchaser under an option.  The alleged breach of fiduciary duty (a form of professional malpractice) was the lawyer's role in a change of the identity of the purchaser under the option.

Expert testimony is necessary in almost all cases to prove professional negligence, and Judge Tennille found the professor to lack the "requisite experience" to supply the required expert testimony, observing that he came up short on a number of grounds:

  • He hadn't been licensed to practice law for more than 25 years;
  • He had never been licensed to practice law in North Carolina; and
  • He had never conducted any real estate transaction "as a lawyer or represented any individual, partnership, joint venture, LLC, or corporation in any real estate transaction. "

Op. ¶37. 

Read this article in its entirety on North Carolina Business Litigation Report, a blog for lawyers focusing on issues of North Carolina business law and the day-to-day practice of business litigation in North Carolina courts.