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Dave Kennett
Dave Kennett, Attorney
Category: Business Law
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Experience:  25 years practicing law
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Can I use a professor who teaches family law in another state

Resolved Question:

Can I use a professor who teaches family law in another state as an expert witness in Georgia in a legal malpractice case?

How difficult is it to arrange? What would I need to do if I found someone who was willing?

Submitted: 5 years ago.
Category: Business Law
Expert:  Dave Kennett replied 5 years ago.
-Could you explain your situation a little more?
What would be the nature of the testimony?
Customer: replied 5 years ago.
In Georgia, I'm required to have a signed affidavit from an expert witness in order to file a malpractice complaint.

I'm trying to do this as pro se litigant and can't find anyone who's willing to serve as an expert witness within the state (and they say no before knowing anything about the case -- so it's really about refusing to work with a pro se litigant).

So I'm trying to see how difficult it would be to use an expert from out of state.

All I need is for someone to look at a few documents and sign an affidavit that says something vague like there might have, maybe been some kind of behavior that fell below average.

"The affidavit of merit statute 'is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint,' but with whether there is some objective threshold merit to the allegations." Hubbard v. Reed, 331 N.J. Super. 283, 292-93 (App. Div. 2000) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)), rev'd on unrelated grounds, 168 N.J. 387 (2001)."

If we go to court, I would need an expert witness to testify but, as I understand it, it doesn't have to be the same expert witness. If the person who signs the affidavit doesn't want to testify, I could supoena someone else at that pont.

Expert:  Dave Kennett replied 5 years ago.
-Could you explain your situation a little more?
What is the nature of the malpractice? Does it relate to the witness's profession?
Customer: replied 5 years ago.
It is a legal malpractice case relating to family law. So I am required to have an expert witness who is a family law attorney or a professor in family law.
Expert:  Dave Kennett replied 5 years ago.

Dear JACUSTOMER - I see no reason why a professor of family law could not testify. Generally most law professors also possess law degrees and if all you need is an affidavit in order to file the case I see no reason why this would not suffice. The problem is that if you get to trial you have to have the expert accepted by the court as an expert in the field so there is no guarantee that a law professor from another state would qualify as I'm certain the opposition would object. Unlike the medical profession, the practice of law varies considerably from state to sate as the laws are very different in the different jurisdictions. So a lawyer from another state may not be qualified to testify as to whether what your lawyer did or didn't do in GA would be malpractice if the professor was not familiar with GA law.

The affidavit to get the case accepted for filing is not as crucial as the testimony at trial but if you do not have an expert lined up for a possible trial you will have a problem maintaining the case. This is similar to criminal law where charges can be filed if there is probable cause that the defendant committed the crime but the prosecutor still needs to have proof beyond a reasonable doubt in order to convict.

Customer: replied 5 years ago.
As I understand it, in Georgia, if the affidavit isn't filed by an expert witness, the case will be immediately dismissed.

My question is, "Will an law professor in family law from outside of Georgia qualify as an expert witness "enough" not to have the case immediately dismissed?"

In Georgia, are qualified expert witnesses for legal malpractice required to teach or practice law (in the speciality in question) within the state of Georgia? If I am allowed to bring in an expert witness from out of state to sign the affidavit, do I need to file for any kind of special permission or approval to use an out of state witness?

If I am going to court, do I have to use the same expert witness that signed the affidavit? Or can I supoena an expert witness (who will be hostile but should still tell the truth) in Georgia for the trial?

My understanding is that most legal malpractice lawsuits are settled out of court. Is that not the case?

Expert:  Dave Kennett replied 5 years ago.

In order to qualify as an expert witness there must be a ruling by the court that this specific expert is qualified. I have no way of knowing if the qualifications of your particular expert would qualify in the GA court. There no law that says this expert or that expert is automatically qualified. As I said, there is a difference between being an "expert" for the purposes of the affidavit and being an "expert" witness at trial. I have no way of knowing if your affidavit will be challenged by the opposing party but if this is the only "expert" you can find then I would use this expert. If the case is dismissed it will be without prejudice and you would be able to refile if you found another expert.

Customer: replied 5 years ago.

A court can't just decide an expert witness isn't qualified unless there are legal guidelines for doing so. What are the legal guidlines for out of state experts?

In Georgia, are there any special requirements or proceedures for using an expert witness from out of state?

Must the legal expert who signs the expert witness affidavit to file the complaint also testifiy at the trial or am I free to introduce a different expert witness during the trial?

Can I use one expert witness to sign the affidavit and a different expert witness to testify in the trial?

If so, can I supoena an expert witness who does not wish to testify and force him to testify during the trial?
Expert:  Dave Kennett replied 5 years ago.
The way it works at trial is there is what is called "voire dire" which is an opportunity to question a prospective expert to see if the expert is a qualified individual and has the expertise in the field. Then the judge either rules the expert is qualified or not. There would be no opportunity to do that in an affidavit since it is simply a piece of paper attached to your complaint so you would have to file the complaint and if the opposition objected then there may be a hearing for voire dire of the expert meaning your expert would have to appear. You can use a different expert at trial if you submit the name during the discovery period. You cannot force an expert to testify who doesn't want to testify.
Customer: replied 5 years ago.

Please explain why you say that I cannot force an expert to testify who doesn't want to testify...

This doesn't seem to agree with what I copied below:


If the expert is subpoenaed - without any agreement for professional compensation - and is later qualified by the presiding judge as an expert witness, he may not be required to perform any special service without an agreement for payment for the expert's professional fees. In the event that the expert is subpoenaed and is given only the statutory fee, he will probably not be as co-operative a witness as one who voluntarily agreed to testify as an expert witness. However, often times an attorney will serve a subpoena to his own expert to indicate that the witness has appeared under court order.

Expert:  Dave Kennett replied 5 years ago.

Of course you can subpoena anyone to court but it makes no sense to try to force someone to testify for you and have them say what you want them to say and that is why I said you can't force an expert to testify. You are asking me questions as an attorney who has practiced for thirty years and I'm trying to give you accurate as well as practical information since you want to act as your own attorney. It is impossible to provide you with all the tools necessary to properly try a case if you want to question everything I'm saying. You can either try to do everything from a technically correct standpoint or you can do it with the idea that some things are technically possible but not wise from a practical perspective. You are into some very complicated and technical aspects of trial practice when you elicit expert testimony. If you want a good expert who will help your case you had better be certain the witness is cooperative and wants to assist you in your claim. So if you try to force someone to testify who has no interest in doing so I seriously doubt the testimony is going to paint the picture you want. It's one thing to subpoena a hostile witness for purposes of cross examination and quite another to force an expert to testify when they have no desire to do so. So technically I was wrong to say you "can't" subpoena an unwilling expert, but I have never seen an attorney try to win a case with an expert who was unwilling to be there.

Malpractice suits are tough enough to win against any profession since most professionals don't enjoy testify against their peers. When someone is forced to do so they tend to be less than favorable toward the attorney who forced them into court.

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