Utah Court of Appeals
When is expert testimony required in Utah legal malpractice cases? Kirkham v. McConkie Explained
Summary
Janae Kirkham sued her former attorneys for malpractice, claiming they breached the standard of care by failing to file a counterpetition for increased child support when her ex-husband sought to modify support. The district court granted summary judgment for the law firm after Kirkham failed to disclose expert witnesses by the deadline.
Analysis
The Utah Court of Appeals in Kirkham v. McConkie reinforced the critical importance of expert testimony in legal malpractice cases, affirming summary judgment against a plaintiff who failed to designate expert witnesses.
Background and Facts
Janae Kirkham retained a law firm to represent her in post-divorce proceedings from 2007 to 2012. When her ex-husband filed a petition to modify child support and seek a tax exemption for their minor child, the law firm did not file a counterpetition for increased child support. This led to disagreements and the firm’s withdrawal. Kirkham later sued for legal malpractice, breach of fiduciary duty, and breach of contract. The law firm timely disclosed an expert witness, but Kirkham failed to disclose any experts by the March 25, 2016 deadline.
Key Legal Issues
The central issue was whether Kirkham could survive summary judgment without expert testimony to prove the standard of care element of her malpractice claims. Kirkham argued that filing a counterpetition was a compulsory counterclaim under Rule 13 and that jurors could understand this breach through proper jury instructions.
Court’s Analysis and Holding
The court applied the established rule that expert testimony is required “where the average person has little understanding of the duties owed by particular trades or professions,” especially in cases involving “complex and involved allegations of malpractice.” The court determined that average jurors would not understand how the Utah Rules of Civil Procedure and Utah Child Support Act operate together, or whether an attorney would be expected to file a counterpetition under these circumstances. The issues required expertise in family law beyond common knowledge.
Practice Implications
This decision underscores that legal malpractice plaintiffs must retain qualified experts to establish standard of care, breach, and causation elements. Courts will not allow complex professional conduct questions to be decided by lay jurors without expert guidance. Practitioners should ensure timely expert disclosure in malpractice cases and carefully assess whether the alleged misconduct falls within common understanding before proceeding without expert testimony.
Case Details
Case Name
Kirkham v. McConkie
Citation
2018 UT App 100
Court
Utah Court of Appeals
Case Number
No. 20160908-CA
Date Decided
June 1, 2018
Outcome
Affirmed
Holding
Expert testimony is required in legal malpractice cases involving complex allegations where the attorney’s conduct and applicable standard of care are beyond the common knowledge of average jurors.
Standard of Review
Correctness for summary judgment and determination that expert witness was required
Practice Tip
Always disclose expert witnesses by the deadline in legal malpractice cases, as expert testimony is typically required to establish standard of care, breach, and causation elements.
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