Misapplication of the Attorney Malpractice Paradigm to Litigation Misapplication of the Attorney Malpractice Paradigm to Litigation Services: "Suit Within a Suit" Shortcomings Compel Witness Immunity for Experts

Abstract

This Article first compares the handling of causation in the non-attorney professional malpractice paradigm (applied in cases involving services other than litigation services) with the handling of causation in the attorney malpractice paradigm. Then, the Article reviews the Mattco Forge cases to provide a background for discussion of the two major issues addressed in that litigation-the availability of witness immunity for experts who perform litigation services and the application of the SWAS doctrine in litigation services malpractice lawsuits. The Article proceeds to show the impropriety of applying the attorney malpractice paradigm to litigation services malpractice lawsuits. Finally, the Article critically analyzes the rationale used to justify denial of witness immunity to experts and concludes that the rationale for protecting witnesses from lawsuits, the differences between experts and attorneys, the existence of other incentives for experts to adhere to professional standards, and the lack of a sufficient method of proving causation and damages together justify applying witness immunity to party experts.