Whitley v. Chamouris

Present: All the Justices

ANGELA D. WHITLEY

v. Record No. 020338 OPINION BY JUSTICE ELIZABETH B. LACY
January 10, 2003
THOMAS L. CHAMOURIS, JR.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge

The sole issue in this appeal is whether expert testimony

is required to establish proximate causation in a legal

malpractice action.

Thomas L. Chamouris, Jr., engaged Angela D. Whitley to

represent him in an action against his former employer.

Whitley filed suit in federal court on Chamouris' behalf

alleging racial discrimination, intentional infliction of

emotional distress, tortious interference with contract, and

defamation. One week before trial, without Chamouris'

consent, Whitley agreed to a voluntary dismissal with

prejudice of Chamouris' claims of discrimination, intentional

infliction of emotional distress, and tortious interference

with contract. Whitley preserved Chamouris' defamation claim

and re-filed it in state court; however Chamouris subsequently

fired Whitley and hired a new attorney to prosecute that

claim. Chamouris and his new attorney settled the defamation

claim for approximately $20,000.
 Chamouris sued Whitley for legal malpractice and breach

of contract alleging that she dismissed his federal claims

without his knowledge or permission. The trial court granted

Chamouris' motion to enter judgment in Chamouris' favor on the

issues of negligence and breach of contract and to submit only

the issues of proximate cause and damages to the jury. The

jury returned a verdict in favor of Chamouris and set damages

at $62,000. Whitley filed a motion to set aside the verdict

arguing that Chamouris was required to, but did not, present

expert testimony on the issue of proximate causation. The

trial court denied Whitley's motion and entered judgment on

the jury verdict. Whitley appeals this ruling of the trial

court.

Whitley asserts that expert testimony was required to

inform the jury whether Chamouris would have prevailed in his

federal claims. In support of this proposition, Whitley

relies on a number of our previous cases in which we have

recited that the questions of negligence and proximate

causation in a legal malpractice action are decided by the

fact finder after considering testimony of expert witnesses.

Ripper v. Bain, 253 Va. 197, 202-03, 482 S.E.2d 832, 836

(1997); Heyward & Lee Constr. Co. v. Sands, Anderson, Marks &

Miller, 249 Va. 54, 57, 453 S.E.2d 270, 272 (1995); Seaward

Int'l, Inc. v. Price Waterhouse, 239 Va. 585, 591-92, 391

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S.E.2d 283, 287 (1990). However, these cases do not stand for

the proposition that such expert testimony is required in each

instance. In Ripper v. Bain, for example, expert testimony

was provided on the issue of negligence, but the causation and

damage evidence was provided solely by the lay testimony of

the clients. 253 Va. at 203-04, 482 S.E.2d at 836.

More importantly, a legal malpractice case such as this

one involves a "case within the case." The plaintiff must

present virtually the same evidence that would have been

presented in the underlying action. Similarly, the defendant

is entitled to present evidence and assert defenses that would

have been presented in the underlying action. In order to

show proximate cause and resulting damages, a plaintiff must

present sufficient evidence to convince the fact finder in the

malpractice case that he would have prevailed in the

underlying case absent the attorney's alleged negligence.

Campbell v. Bettius, 244 Va. 347, 352, 421 S.E.2d 433, 436

(1992).

The expert testimony Whitley maintains was necessary

requires either a prediction of what some other fact finder

would have concluded or an evaluation of the legal merits of

Chamouris' claims. No witness can predict the decision of a

jury and, therefore, the former could not be the subject of

expert testimony. The latter, as the trial court noted, would

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be improper because it would be legal opinion. Code § 8.01-

401.3(B).

Accordingly, we conclude that the trial court did not err

in holding that expert testimony was not required to prove

causation in this legal malpractice action. The judgment of

the trial court will be affirmed.

Affirmed.

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