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Law School Case Brief

Olfe v. Gordon - 93 Wis. 2d 173, 286 N.W.2d 573 (1980)


Expert testimony should be generally required to establish the standard of care applicable to an attorney whose conduct is alleged to have been negligent and further to establish that his conduct deviated from that standard. That general rule should be subject to the exception that such expert testimony is not necessary in cases where the conduct complained of can be evaluated adequately by a jury in the absence of expert testimony.


Plaintiff Frieda Olfe filed a legal malpractice action in Wisconsin state court against defendants Attorney Robert N. Gordon and St. Paul Fire & Marine Insurance Company, Gordon's professional liability insurer, over Gordon’s alleged negligent failure to follow her instructions in a transaction involving the sale of land. Olfe sought to recover the unpaid principal balance of a mortgage note on the property. Defendants filed a motion to dismiss on the ground of insufficiency of the evidence. The trial court granted the motion at the close of Olfe's case, ruling that there was insufficient evidence to establish a prima facie case against defendants and that a lack of expert testimony relating to the standard of care required of attorneys in similar circumstances precluded the jury from passing on the alleged negligence. Olfe appealed, arguing that expert testimony was not required to establish Gordon’s standard of care and that the record contained sufficient credible evidence to warrant sending the case to the jury. 


Was expert testimony required to show that Gordon, as Olfe’s agent, violated his duty to her?




The court reversed the trial court's judgment and remanded the case for a new trial. The court ruled that expert testimony was not required to show that Gordon, as agent for Olfe, violated his duty to her. The duty of care Gordon owed Olfe was established not by the legal profession's standards but by the law of agency. Olfe sought recovery based on Gordon's failure to effectuate her intent even though the documents he prepared were not legally invalid. Proof of negligence in failing to follow specific instructions concerning the nature and purpose of the documents desired did not require expert testimony to establish the applicable standard of care and the departure from that standard. Olfe’s evidence presented questions for the jury as to the existence and apportionment of causal negligence. The jurors could view Gordon’s actions as misinforming or insufficiently informing Olfe, and she was not barred from recovery merely because she concluded that Gordon had properly performed the services for which he was employed.

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