Stephens v. Denison, 150 S.W.3d 80 (Ky. Ct. App. 2004)
KY: Criminal Law
Student Contributor: Louis Dell
Facts: Stephens was convicted of obtaining a controlled substance by fraud and of being a first degree persistent felony offender. He was sentenced to twenty years in prison. After his conviction Denison filed a suit for legal malpractice against his defense attorney, Denison. Stephens claims that Denison failed to notify him of a plea bargain which would have reduced his sentence to two years. He also claims that Denison was using Cocaine during the trial. Denison was awarded summary judgment because the claim was outside of the statute of limitations. The case was appealed and the decision was reversed and remanded. Denison then argued that Stephens? lack of an expert witness barred any the claim of legal malpractice. Denison was granted summary judgment and Stephen appealed.
Issue: Is the use of an expert witness required to be successful in a claim for legal malpractice?Is exoneration required before a legal malpractice arising from a criminal defense can be heard?
Ruling: No, the use of an expert witness is not always needed. Where ?negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it? an expert is not needed.
Yes, exoneration is required before a legal malpractice claim can be brought.
Lesson: The use of an expert in a legal malpractice claim is almost always needed. Even where it appears that the negligence is so obvious that a lay person would have no difficulty in recognizing it, the use of an expert would still be helpful as it would reduce the number of issues that could be appealed. ?
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