Virginia: Special Cases – a Lawyer’s Expert (September 25, 2018)

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By unpublished Order on July 26, 2018, the Virginia Supreme Court affirmed dismissal of a legal malpractice suit by Fairfax Circuit Court. The case is Sere v. Trapeni, No. 170842.

Sere declared that “the circuit court’s rulings in the underlying personal injury action have no preclusive effect in this malpractice action,” because direct estopped and collateral estoppel do not apply. Id. at 5-6. Hence plaintiffs must prove “the case within the case,” and Defendants can relitigate any and all issues.

Sere observed that “the question whether the Defendants’ actions caused Sere’s personal injury action to become time-barred required resolution of at least four complex legal questions,” so were not within the common knowledge of a layperson juror, as Plaintiff claimed in support of not having a legal expert on standard of care (“SOC”). Moreover, because Plaintiff failed to argue the four questions were purely ones of law for the trial judge to decide instead of jurors, which they were; Sere held Plaintiff was required to have had a legal SOC expert, and did not. Id. at 8.