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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