Court qualifies retired judge as legal malpractice expert witness in South Dakota

This case involved claims of attorney malpractice and breach of fiduciary duty brought by American Zurich Insurance Company and Zurich American Insurance Company (collectively Zurich) against attorney J. Crisman Palmer and the law firm Gunderson, Palmer, Nelson & Ashmore, LLP (collectively Defendants). Palmer moved to exclude Colin F. Campbell, Zurich’s legal malpractice expert witness.  

In 2007, Joseph Leichtnam was injured at work. Zurich paid Leichtnam workers’ compensation benefits, including medical expenses. In 2015, Leichtnam sued Zurich for bad faith related to his workers’ compensation claim. Zurich retained Palmer to defend them against Leichtnam’s bad faith claim.  

In September 2015, Leichtnam’s attorney offered to settle the bad faith claim for $325,000. The parties attempted mediation in October 2016, but were unsuccessful. Leichtnam initially demanded $2 million, which was reduced to $1.995 million after Zurich offered $10,000.  

In January 2018, Zurich brought in outside counsel to take over the defense. The case eventually settled for around $2 million. In April 2020, Zurich sued Palmer for malpractice and breach of fiduciary duty. Zurich claimed Palmer’s failure to adequately prepare Zurich’s defense and advise them on litigation strategy caused Zurich to miss an opportunity to settle early for $325,000. Zurich also claimed Palmer’s negligence led to increased litigation costs by delaying resolution of the case. 

The Court addressed two key issues – the admissibility Zurich’s legal malpractice expert witness’ testimony on the standard of care, and Palmer’s motion for summary judgment based on the statute of repose.  

Colin F. Campbell – Legal Malpractice Expert Witness

Colin F. Campbell graduated summa cum laude from the University of Arizona College of Law in 1977. After a judicial clerkship and two years as an Assistant Federal Public Defender, he worked in private practice from 1978 to 1990 and 2007 to the present. His practice areas include commercial and civil litigation, tort law, and criminal law. He has represented limited liability companies and closely held companies in transactions and litigation.  

From 1990 to 2007, Campbell served as a Superior Court judge in Maricopa County, Arizona. He was the presiding judge of the Maricopa County Superior Court from 2000 to 2005. 

Campbell has been admitted to practice law before the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, and the U.S. District Court for the District of Arizona. He is a member of the State Bar of Arizona, the American Bar Association, and the Maricopa County Bar Association. 

Campbell has authored several publications on legal topics during his career. He has lectured extensively on various aspects of trial practice, evidence, ethics, and alternative dispute resolution.  

In summary, Campbell has over 45 years of experience practicing law, including nearly 20 years as a Superior Court judge. He has expertise in commercial litigation, torts, criminal law, legal ethics, and alternative dispute resolution. Based on his background, Campbell is qualified to provide expert testimony on the standard of care in legal malpractice cases. 

Discussions by the Court 

Defendants moved to exclude the legal malpractice expert witness testimony of Colin Campbell submitted by Zurich in support of its malpractice and breach of fiduciary duty claims. Defendants argued Campbell was not qualified under Rule 702 to give an expert opinion on the standard of care in South Dakota. According to Defendants, Zurich’s claims require expert testimony on the statewide standard of care in South Dakota. Campbell was not licensed in South Dakota, had never practiced there, and did no South Dakota-specific research. Thus, Defendants contended Campbell could not opine on the South Dakota standard of care and his testimony should be excluded.  

The Court explained that under South Dakota law, legal malpractice claims require expert testimony to establish the standard of care, except in certain clear-cut cases. The locality rule may apply when local customs and practices are relevant to the claimed breach of duty. However, the Court noted application of the locality rule is fact-specific. The Court stated that when locality is relevant, the focus is usually on a statewide standard.   

The Court found Campbell was not qualified to testify about the South Dakota standard of care, as he had no experience practicing in the state. However, the Court determined Campbell was qualified based on his extensive experience to opine on the national standard of care. The key issue became whether a national or statewide standard applied to Campbell’s proposed expert opinions. 

Citing Hamilton v. Sommers, the Court held that an attorney’s competence and proficiency should not vary based on their geographical location or the specific jurisdiction in which they practice law. Instead, it implies that attorneys should adhere to a consistent standard of skill and ability regardless of where they work. Hence, if considering the individual locality is not relevant in establishing a statewide standard of care, then it should also not be relevant in determining whether a national or statewide standard of care applies.

Campbell opined Palmer breached the standard of care by failing to timely review evidence, evaluate facts, prepare defenses, and analyze litigation strategy. Defendants argued the uniqueness of litigating against opposing counsel Abourezk affected the standard of care. The Court rejected this, finding no authority that litigating against a specific lawyer alters the national or statewide analysis.  

Defendants also cited South Dakota’s broad discovery practices, but the Court found this insufficiently related to Campbell’s opinion. The Court reasoned Palmer had or could have obtained the necessary evidence to fulfill his duties, regardless of the scope of discovery. Thus, a national standard of care applied to this opinion. 

Campbell also opined Palmer failed to properly advise Zurich on settlement strategy. Again, the Court declined to consider arguments about Abourezk’s uniqueness. The Court also rejected discovery scope as irrelevant to Palmer’s duty to update Zurich. Thus, the Court applied a national standard of care. 

On summary judgment, the Court agreed with Palmer that Zurich’s claim it lost an opportunity to settle for $325,000 was barred by the 3-year statute of repose. That alleged harm stemmed from a single event – the failed mediation in 2016. However, the Court found Zurich’s claim about increased litigation costs was timely under the continuous tort doctrine. Palmer’s ongoing negligence in keeping Zurich informed and preparing the defense cumulatively caused those damages within the limitations period.  

Held 

The Court denied the motion to exclude, finding Campbell qualified to opine that Palmer breached the national standard of care. The Court determined a national standard applied to Campbell’s opinions, as Palmer’s alleged failings were insufficiently tied to unique South Dakota practices. 

The Court granted Palmer summary judgment on the lost settlement opportunity claim and the fiduciary duty claim due to lack of expert testimony. It denied summary judgment on the increased litigation costs claim. In total, Zurich may still pursue its malpractice claim based on excess litigation costs caused by Palmer’s negligence in handling the defense. 

Since the issues involved in this case have not been fully resolved, this case still awaits an outcome. 

Key Takeaways:

This case illustrates several important points about expert witness testimony in legal malpractice claims: 

– Expert testimony is usually required under South Dakota law to establish the standard of care in attorney malpractice cases, except for clear-cut breaches within a layperson’s common knowledge. 

– When locality may be relevant, the focus is generally on a statewide standard of care rather than a local standard tied to a specific jurisdiction. 

– The necessity of location-specific expert testimony is a fact-specific determination based on whether unique local customs and practices are implicated by the attorney’s alleged breach. 

– The party offering the expert testimony bears the burden of proving admissibility. 

– An expert’s lack of licensure or experience in a particular state does not necessarily render the expert unqualified to opine on a national standard of care.  

– Courts have discretion in evaluating the reliability and relevance of expert opinions under Rule 702. Qualification to opine on a national standard is distinct from qualification to opine on a state-specific standard. 

So in this case, the Court admitted national standard of care testimony despite the expert’s lack of South Dakota-specific credentials, because it found no evidence the alleged breaches were tied to unique state customs and practices.