ACKERLY BROWN, LLP v. SMITHIES, No. LLI CV 05 4003196S (Nov. 15, 2006)


ACKERLY BROWN, LLP v. Richard SMITHIES et al.

2006 Ct. Sup. 21105
No. LLI CV 05 4003196SConnecticut Superior Court, Judicial District of Litchfield at Litchfield.
November 15, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
JOHN W. PICKARD

The plaintiff, Ackerly Brown, LLP, sued the defendants, Richard Smithies and Maura Smithies, to collect legal fees for representation of the defendants in a jury trial. The plaintiff is represented by counsel; the defendants have appeared pro se. The parties presented evidence in a trial to the court on November 1, 2006.

Attorney Michael Sconyers, a partner in the plaintiff law firm, represented the defendants in a civil case in which they were sued for damages following their failed attempt to lease their dwelling. The case was tried to a jury in 2002. Immediately prior to the selection of the jury, Attorney Sconyers informed the defendants, in writing, that the case could be settled for $7,500. He also confirmed that he would continue to bill at the rate of $215 per hour, that the preparation and trial of the case could be expensive, and that they could lose the trial. The defendants elected to proceed to trial without making any settlement offers. After a four-day trial the jury returned a verdict against the defendants for roughly $25,000. The trial court denied the defendants’ motion to set aside the verdict and for a new trial but granted a remittitur of the verdict down to roughly $8,000. The plaintiff in that case refused to accept the remittitur and took an appeal. The plaintiff’s legal services to the defendants ended on August 27, 2002, after the appeal was filed but before it was briefed or argued. The plaintiff submitted a final bill to the defendants dated September 27, 2002 showing a balance due of $15,680.70. The defendants have made no payments to the plaintiff. Within a week after the return date in this case the plaintiff submitted an offer of judgment in the amount of $14,320.08. The defendants did not respond to that offer.

In response to the complaint the defendants filed a pleading titled “Answer and Counterclaim.” Thereafter, the defendants filed an “Amended Counterclaim.” The gravamen of the answer and amended counterclaim is professional negligence: that the legal services provided by the plaintiff were “inadequate” and “incompetent.” Prior to the start of CT Page 21106 evidence, the court granted the plaintiff’s motion in limine as to the introduction of any expert testimony by the defendants on the ground that the defendants had failed to disclose any experts in accordance with Practice Book § 13-4.

The defendants did not dispute the hours expended by the plaintiff, the hourly rate or the lack of payment. The sole defense is professional negligence in several ways in the preparation and trial of the case. This defense must fail because of the defendants failed to present expert testimony. “Generally, to prevail in a case alleging legal malpractice, a plaintiff must present expert testimony to establish the standard of proper professional skill or care.” Dixon v. Reiner, (Citations omitted) 95 Conn.App. 294, 297 (2006). This is true even in a case tried to the court, not a jury, unless the alleged malpractice simply involve rules of practice and procedure. Id., at 299. The same rule prevails where the defendant attempts to use malpractice as a defense to a suit for attorney fees. Bent v. Green, 39 Conn.Sup. 416
(1983). “The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson.” (Citations omitted.) Celentano v. Grudberg, 76 Conn.App. 119, 126 (2003). This exception has been limited to situations unlike the allegations in this case where the attorney has essentially done nothing to protect the client. Satbit v. Gordon, 58 Conn.App. 724, 728 (2000).

The allegations of negligence in this case involve such tactical questions as whether to file a motion for summary judgment, the questions asked at voir dire, the questions asked of witnesses, whether to make objections to certain evidence, the substance of requests to charge, and effective cross examination. “This is not a case in which the defendant, after accepting the representation, did nothing . . . Complicated legal and procedural issues were involved.” Celentano v. Grudberg, supra, 76 Conn.App. at 128. Attorney Sconyers is an attorney with many years of learning and experience. He used this learning and experience to make many tactical and legal decisions before, during and after the trial to the jury. The law requires that his decisions not be found wanting in the absence of credible expert testimony which establishes the applicable standard of care as well as deviations therefrom which cause damage.

For the foregoing reasons, judgment shall enter for the plaintiff on the complaint in the amount of $15,680.70 plus costs. In addition, because the amount recovered by the plaintiff exceeds the offer of judgment, the plaintiff shall recover interest on the amount of the recovery at the rate of twelve per cent per annum from August 19, 2005, CT Page 21107 the date on which the complaint was filed with the court. No pre-suit interest is awarded. Judgment shall also enter for the plaintiff on the amended counterclaim. CT Page 21108