Kendall v. Utah Estate Planners PLLC ( 2023 )

2023 UT App 82THE UTAH COURT OF APPEALS
JILL H. KENDALL AND ROBERT G. HARDING,
Appellants,
v.
UTAH ESTATE PLANNERS PLLC AND PATTIE S. CHRISTENSEN,
Appellees.
Opinion
No. 20210786-CA
Filed August 3, 2023
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 170400782
Steven H. Bergman, Attorney for
Appellant Jill H. Kendall
Jared W. Moss, Attorney for
Appellant Robert G. Harding
Patrick C. Burt, Attorney for Appellees
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
JOHN D. LUTHY and AMY J. OLIVER concurred.
HARRIS, Judge:
¶1 Jill Kendall and Robert Harding (collectively, Trustees),
acting as co-trustees of a family trust (Trust), appeal the dismissal
of legal malpractice claims they filed against the Trust’s former
attorney. The district court dismissed the claims because Trustees
failed to designate an expert witness to testify that the attorney
had breached the standard of care. Trustees challenge that ruling,
asserting that, for various reasons, they were not required to
retain an expert witness. We disagree, and therefore affirm.
Kendall v. Utah Estate Planners
BACKGROUND 1 0F
¶2 In 1994, as part of a broader effort to manage his assets and
plan his estate, Dean Harding created the Trust. The beneficiaries
of the Trust were Dean’s spouse and Dean’s three children from a
previous marriage (Robert, Jill, and Jeana). 2 Dean’s spouse—if she
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survived him—was to have the use of certain Trust assets during
her lifetime, and then after her death the Trust assets were to be
distributed to Dean’s three children “in equal shares.”
¶3 Under the terms of the Trust, upon Dean’s death “all
property subject to [the Trust] shall be divided into two parts
known as the marital share and the family share.” Income from
both parts of the Trust was to be paid to Dean’s spouse. But Trust
principal was, in the main, to pass to Dean’s three children: the
Trust document allowed the trustee, under certain circumstances
and after making specific determinations, to distribute principal
from the family share to Dean’s spouse during her lifetime, but
principal from the marital share was not to be distributed to
Dean’s spouse under any circumstance.
¶4 Dean’s will—created contemporaneously with the Trust—
contained a “spendthrift clause” that was apparently
incorporated into the Trust. This provision mandated, in relevant
part, that no “interest of any beneficiary” in the Trust “be liable
. . . for the debts, contracts, liabilities, engagements, obligations or
torts of such beneficiary.”
1. A more complete description of the larger dispute underlying
this case is contained in our opinion, also issued today, in In re
Harding Trust, 2023 UT App 81.
2. Because several of the individuals involved in this case are
members of the same family, we often refer to them by their first
names, with no disrespect intended by the apparent informality.
20210786-CA 2 2023 UT App 82Kendall v. Utah Estate Planners
¶5 Dean passed away in January 2004. When he created the
Trust, Dean had named himself as trustee, and had named an
accountant (Accountant) as the successor trustee. Upon Dean’s
death, Accountant began managing the Trust, and separated its
assets into the marital and family shares. Among the assets
Accountant put into the marital share of the trust were certain
individual retirement accounts (the IRAs) that Dean owned prior
to his death. Accountant also retained Pattie Christensen, a trusts
and estates attorney working for Utah Estate Planners PLLC, 3 to2F
“review the trust documents,” “assist [Accountant] . . . with some
titling,” and provide help “as he requested assistance.”
¶6 Not long after his appointment, Accountant resigned as
trustee due to “growing contention” in the family regarding the
Trust assets. Dean’s spouse then appointed her son from another
marriage, Rickie Taylor—who was not a Trust beneficiary—as the
new trustee. Around the same time Taylor was appointed as
trustee, he also obtained power of attorney over his mother’s
personal finances. As trustee, Taylor continued to periodically
utilize Christensen’s services on behalf of the Trust and would
contact Christensen for legal advice approximately every two to
four months, though the actual scope of Christensen’s
representation is disputed.
¶7 In addition to consulting with Christensen periodically,
Taylor also retained the services of another attorney (Second
Attorney) to assist with Trust administration. At one point,
Second Attorney contacted a local law professor for guidance
regarding application of the Utah Principal and Income Act (the
3. Pattie Christensen was the sole attorney affiliated with Utah
Estate Planners during the events that give rise to this lawsuit.
Because Utah Estate Planners was sued in connection with
Christensen’s actions, in this opinion we often refer to Utah Estate
Planners and Christensen collectively as “Christensen.”
20210786-CA 3 2023 UT App 82Kendall v. Utah Estate Planners
UPIA) 4 to certain minimum distributions (RMDs) that she
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understood the Trust was required to make from the IRAs. The
professor informed Second Attorney that only income (but not any
principal) from the IRAs was supposed to be paid to Dean’s
spouse; this was contrary to what Taylor had been doing up to
that point, namely, paying the entire RMDs to Dean’s spouse
without regard for whether those payments included some Trust
principal. Second Attorney claims that she communicated this
information to both Christensen and Taylor. Not long after,
Second Attorney stopped working for the Trust; she testified that
she made the decision to quit because Taylor, even after learning
that he was not legally allowed to pay the entire RMDs to his
mother, was not taking “the law seriously at all” and was “not
going to stop” making the payments to his mother.
¶8 For her part, Christensen testified that she made
“consistent and unwavering” statements to Taylor “not to spend
principal of the marital” share of the Trust. She sent several
letters—in 2005, 2006, and 2009, each either addressed directly to
Taylor or copied to Taylor—that clearly indicated that Taylor was
not allowed to distribute principal from the marital share, stating
in one of them that the Trust “requires principal payments to
come from the family share rather than the marital share.”
Trustees initially attempted to dispute the fact that Christensen
communicated this advice to Taylor, but during oral argument on
Christensen’s summary judgment motion, Trustees’ counsel
acknowledged that Christensen had sent documents to Taylor
“saying you cannot distribute principal from the marital trust.” In
any event, Taylor continued to distribute the full RMD amount to
4. In 2020, our legislature amended and renamed this statute, now
titling it the “Uniform Fiduciary Income and Principal Act.” See
Utah Code § 22-3-101. No party suggests that the recent
amendments are relevant to this case. In this opinion, we refer to
this statute as the UPIA, the title it had during the events giving
rise to this case.
20210786-CA 4 2023 UT App 82Kendall v. Utah Estate Planners
his mother, without regard to whether those payments included
marital share principal. Christensen did not, however, follow up
with Taylor or with the Trust’s financial advisers to ensure that
her advice was being followed.
¶9 While Taylor was acting as trustee, Robert’s ex-wife served
a writ of garnishment on the Trust, seeking to collect a debt Robert
apparently owed her in their divorce case. Christensen accepted
service of this writ on behalf of the Trust. Ultimately, Taylor
authorized payment to Robert’s ex-wife, out of Trust assets, of
about $250,000. The parties dispute the amount of Christensen’s
involvement in the decision to make the payment: Christensen
claims that Taylor hired another attorney to advise him on the
garnishment issue, but Taylor claims that Christensen advised
him to make this payment.
¶10 Dean’s spouse passed away in 2015, and Taylor was
appointed as personal representative of her estate. Not long after,
Robert filed a lawsuit against Taylor, the Trust, and others in
which he asserted that Taylor had made improper distributions
from the Trust and in which he sought a full accounting of Trust
assets as well as damages. An appeal from the court’s rulings in
that lawsuit is the subject of our opinion in In re Harding Trust,
2023 UT App 81.
¶11 About two years after Robert initiated the Harding lawsuit,
Taylor (acting as trustee of the Trust) filed this lawsuit, alleging
that Christensen and Utah Estate Planners 5 had committed legal
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malpractice related to the advice they had given (or failed to give)
to the Trust. In his complaint, as amended, Taylor acknowledged
5. Taylor’s lawsuit also alleged malpractice against other
professionals who had given advice to the Trust. All the other
defendants—besides Christensen and Utah Estate Planners—
were eventually dismissed from the case, and the dismissal of the
other defendants is not at issue in this appeal.
20210786-CA 5 2023 UT App 82Kendall v. Utah Estate Planners
that, under the UPIA and the terms of the Trust, he was supposed
to distribute only about 4% of the RMDs from the IRAs to Dean’s
spouse, but alleged that he relied “on the advice of the various
professional advisors” in distributing the entire amount. The
complaint alleged that Christensen advised Taylor that he could
occasionally make distributions from the marital share, that
Christensen never advised Taylor about the provisions of the
UPIA governing the RMDs, and that Christensen never advised
Taylor that he could be subject to liability for his actions. The
complaint also alleged that Christensen advised Taylor to make
the writ of garnishment payment to Robert’s ex-wife. The
complaint did not contain any allegations of malpractice related
to any conflicts of interest. And the complaint did not allege that
Christensen had committed legal malpractice by failing to follow
up with Taylor or the Trust to make sure her advice was followed.
¶12 As the case proceeded toward trial, Taylor moved to
consolidate it with the Harding lawsuit. That request was denied,
but the court did stay this case until the Harding court resolved
the issue of who the proper trustee was, and then extended the
stay until after the Harding lawsuit was fully resolved. The court
in the Harding lawsuit removed Taylor as trustee and replaced
him with Robert and Jill, who later elected to continue
prosecuting this lawsuit. And the Harding lawsuit was eventually
resolved largely in favor of Robert and against Taylor; the court
in that case found that Taylor, while serving as trustee of the
Trust, had breached his fiduciary duties in various ways,
including by making improper distributions of Trust principal
and engaging in numerous acts of self-dealing. In addition, the
court found that Taylor had conflicts of interest due to his various
roles as trustee of the Trust, as holder of power of attorney over
his mother’s finances, as a beneficiary of his mother’s estate, and
as personal representative of his mother’s estate.
¶13 After the court in the Harding lawsuit made its ruling, the
stay in this case was lifted. The parties stipulated to a pretrial
20210786-CA 6 2023 UT App 82Kendall v. Utah Estate Planners
scheduling order that was signed by the court and included a
deadline for expert disclosures. Within that deadline, Trustees
submitted their expert disclosures and identified a forensic
accountant to provide testimony on “the excess distributions
made by the [Trust],” “the administration of the Trust,” and “the
administration and distribution of [Trust] assets.” They did not,
however, designate any expert to opine on the standard of care
for a trusts and estates attorney, or to opine that Christensen had
breached any such standard of care or that she had caused
Trustees any damage.
¶14 After discovery was complete, Christensen moved for
summary judgment, arguing that Trustees could not establish a
prima facie case of legal malpractice without an expert witness
who could opine on the standard of care and causation.
Christensen argued that “a juror would be hard pressed to
understand whether Christensen gave incorrect legal advice . . .
as [Trustees] allege[d]” due to the complexity of the allegations
“concern[ing] sub-trusts, minimum distributions of IRAs under”
federal law and the UPIA, and “the alleged dissipation of Trust
assets over many years.” Trustees responded by asserting that
expert testimony was not required in this case because the
malpractice allegedly committed by Christensen was clear and
obvious, even to a lay juror. Also, they pointed out that, because
none of the parties ever filed a jury demand, this case would
therefore be tried to the bench, and they argued that a different
standard for necessity of expert testimony should be applied in a
bench trial than in a jury trial.
¶15 After full briefing and oral argument, the district court
granted Christensen’s motion. The court rejected Trustees’
argument that a different standard should apply in bench trials
than in jury trials. And the court determined that expert testimony
was necessary in this case because it calls for determination of
“complex and involved allegations of malpractice” such that an
attorney’s standard of care is “not within the common knowledge
20210786-CA 7 2023 UT App 82Kendall v. Utah Estate Planners
of the layman.” Later, Trustees filed a motion asking the court to
reconsider its ruling, and the court denied that motion. The court
then entered final judgment in favor of Christensen.
ISSUE AND STANDARD OF REVIEW
¶16 Trustees appeal the court’s summary judgment ruling. “An
appellate court reviews a district court’s conclusion that expert
testimony is required for correctness.” Clifford P.D. Redekop Family
LLC v. Utah County Real Estate LLC, 2016 UT App 121, ¶ 10, 378
P.3d 109. And “we review the district court’s summary judgment
ruling for correctness and view all facts and reasonable inferences
in favor of the nonmoving party.” USA Power, LLC v. PacifiCorp,
2010 UT 31, ¶ 28, 235 P.3d 749 (quotation simplified).
ANALYSIS
¶17 In legal malpractice cases, plaintiffs are often required to
present expert testimony. See Preston & Chambers, PC v. Koller, 943
P.2d 260, 263 (Utah Ct. App. 1997) (stating that “expert testimony
may be helpful, and in some cases necessary, in establishing the
standard of care required in cases dealing with the duties owed
by a particular profession,” including “the duties owed by
practicing attorneys to their clients”). In cases where expert
testimony is required, a plaintiff’s claims are subject to dismissal
for lack of necessary evidence if that plaintiff does not present
expert testimony in support of those claims. Id. at 264 (affirming
the dismissal of legal malpractice claims that were not supported
by expert testimony).
¶18 At least in cases scheduled to be tried to juries, expert
testimony is required in all instances in which “the average
person has little understanding of the duties owed,” including in
legal malpractice cases “involving complex and involved
allegations of malpractice.” Id. at 263 (quotation simplified).
20210786-CA 8 2023 UT App 82Kendall v. Utah Estate Planners
Indeed, we have stated that, in the legal malpractice arena,
“expert testimony is unnecessary only in cases where the
defendant’s conduct is within the common knowledge and
experience of the layman.” Kirkham v. McConkie, 2018 UT App 100,
¶ 8, 427 P.3d 444 (quotation simplified).
¶19 The central question presented by this appeal is whether
Trustees were required—in this case that was to be tried to the
bench—to support their legal malpractice claims with expert
testimony. In addressing this question, we first consider whether
a different standard for evaluating the necessity of expert
testimony applies in legal malpractice cases that are to be tried to
the bench than in similar cases scheduled for jury trials, and we
conclude that the same standard applies in both types of cases.
Applying that standard, we then conclude that the district court
did not err in determining that Trustees were required to support
their legal malpractice claims with expert testimony, or in
determining that, in the absence of such support, those claims
were subject to dismissal on summary judgment.
I
¶20 Trustees first assert that, in legal malpractice cases tried to
the bench, a different (and more lenient) standard for evaluating
the necessity of expert testimony should apply. They assert that,
in legal malpractice cases (if not in other professional malpractice
cases), the trial judge operates as a “sophisticated trier of fact”
who will by definition be “experienced in the foundation of the
subject matter.” They contend that “[i]t would be a legal fiction to
treat the bench as an average juror, and it would be superfluous
to require [a legal malpractice plaintiff] to produce an expert to
tell the court what it already knows.”
¶21 We acknowledge Trustees’ point that trial judges, by
definition, have extensive and varied legal training and
experience. And Trustees are correct in asserting that all the Utah
20210786-CA 9 2023 UT App 82Kendall v. Utah Estate Planners
appellate opinions to have discussed the standard for evaluating
the necessity of expert testimony in legal malpractice cases appear
to have involved cases scheduled for jury trials. See, e.g., Kirkham,
2018 UT App 100, ¶ 10 (evaluating whether “jurors would be hard
pressed to understand” the issues in the case); Preston & Chambers,
943 P.2d at 263–64. Certainly, no Utah appellate court has yet
considered whether a different standard should apply in cases
scheduled to be tried to the bench.
¶22 But courts in other jurisdictions have considered this issue,
and they have generally declined the invitation to apply a
different standard in bench trials than in jury trials. In so doing,
these courts have offered several persuasive reasons not to apply
different standards in different types of cases. First, judges acting
as factfinders in bench trials are not supposed to use their
background knowledge in resolving factual questions. See
Landeen v. Phonebillit, Inc., No. 1:04-CV-1815LJM-WTL, 2007 WL
4556739, at *1 (S.D. Ind. Dec. 20, 2007) (“[A] judge may not decide
lawsuits based on their independent knowledge of facts.”).
Instead, factfinders—including judges presiding over bench
trials—are expected to consider only the evidence admitted in
court. If judges acting as factfinders were to rely on their own
“unique expertise” in determining the appropriate standard of
care in a legal malpractice case, see Royal Ins. Co. of Am. v. Miles
& Stockbridge, PC, 138 F. Supp. 2d 695, 700 (D. Md.), amended in
part on other grounds, 142 F. Supp. 2d 676 (D. Md. 2001), they
would be forced to violate this convention and “use [their] own
independent knowledge” in deciding the case, see Sheetz v.
Morgan, 424 N.E.2d 867, 871 (Ill. App. Ct. 1981); see also Landeen,
2007 WL 4556739, at *1 (“[I]f expert testimony is required to
establish the standard of care for [the plaintiff]’s malpractice case
. . . , then the Court cannot act as its own expert because it would
require the Court to consider facts not in evidence.”).
¶23 Moreover, a standard that allows a judge to effectively act
as a standard-of-care expert in a legal malpractice case would
20210786-CA 10 2023 UT App 82Kendall v. Utah Estate Planners
infringe on the parties’ right to meaningfully test an expert’s
assumptions, beliefs, and background. To explore these things, a
litigant is normally afforded the opportunity to cross-examine an
expert witness retained by the other side; no such process is
available if the judge fulfills the “expert” role. 6 See Cleckner v. Dale,
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719 S.W.2d 535, 542 (Tenn. Ct. App. 1986) (“If the trial court’s
opinion [on the standard of professional conduct in a legal
malpractice case] is based upon its personal experience, its
evidentiary foundation will not be before the jury and will not be
subject to cross examination by counsel.”), abrogated on other
grounds by Chapman v. Bearfield, 207 S.W.3d 736 (Tenn. 2006);
Primis Corp. v. Milledge, No. 14-08-00753-CV, 2010 WL 2103936, at
*3 n.1 (Tex. App. May 27, 2010) (“A trial judge’s private thoughts
regarding [whether attorneys breached their duties] are not
evidence, and they are not reflected in the record. Nor are they
subjected to the adversarial process.”). And the standard of care
itself is a factual issue that should be resolved subject to the usual
adversarial process. See Lentino v. Fringe Emp. Plans, Inc., 611 F.2d
474, 481 (3d Cir. 1979) (“[T]he actual standard of care itself is a
6. Indeed, allowing a trial judge to effectively fulfill the role of
standard-of-care expert may present due process problems. See
Bonhiver v. Rotenberg, Schwartzman & Richards, 461 F.2d 925, 928–
29 (7th Cir. 1972) (“A determination made by the trial judge based
upon a private investigation by the court or based upon private
knowledge of the court, untested by [cross-examination], or any
of the rules of evidence constitutes a denial of due process of law.”
(quotation simplified)); see also Fishow v. Simpson, 462 A.2d 540,
544 (Md. Ct. Spec. App. 1983); Landeen v. Phonebillit, Inc., No. 1:04-
CV-1815LJM-WTL, 2007 WL 4556739, at *1 (S.D. Ind. Dec. 20,
2007). In this opinion, we do not go so far as to actually hold that
applying a different standard in legal malpractice cases tried to
the bench would violate due process, but we view the due process
considerations here as legitimate and serious enough to
contribute to dissuading us from adopting a standard that would
potentially infringe on a litigant’s rights.
20210786-CA 11 2023 UT App 82Kendall v. Utah Estate Planners
question of fact that is best left to the presentation of evidence
with the opportunity for cross-examination and rebuttal.”); Primis
Corp., 2010 WL 2103936, at *3 n.1 (“[A]lthough a trial judge may
be competent to evaluate whether an attorney breached a duty to
his client and whether this breach caused damage, these are
factual issues that must be established in the evidence at trial and
subjected to the adversary process.”).
¶24 Next, while trial judges are all very experienced, that
experience takes different forms with each individual judge. Some
judges come from a criminal law background. Others come from
a civil law background. And some come from unique
backgrounds that cannot fairly be categorized as traditionally
“civil” or traditionally “criminal.” In addition, the term “civil
law” encompasses so many specialties and subspecialties that a
judge whose background is in one area of the civil law may not
come to the bench with significant knowledge about another area
of the civil law. It is therefore fair to say that “not every trial judge
is an expert in the particular field of practice at issue” in a given
legal malpractice case. See D’Agostino v. Drazin & Warshaw, PC,
No. A-1470-11T3, 2013 WL 4859575, at *6 (N.J. Super. Ct. App.
Div. Sept. 13, 2013); see also Cleckner, 719 S.W.2d at 542 (“No
attorney is bound to know all the law, God forbid that it should
be imagined that an attorney, or a counsel, or even a judge is
bound to know all the law.” (quoting Montriou v. Jefferys (1825)
172 Eng. Rep. 51, 53)). These differences in experience among
judges lead to practical difficulties in attempting to articulate and
apply a bench-trial-based standard regarding the necessity of
expert testimony in legal malpractice cases. The normal jury-trial-
based standard, articulated above, is whether the issues presented
are “within the common knowledge and experience of the
layman.” See Kirkham, 2018 UT App 100, ¶ 8 (quotation
simplified). If we were to apply a different standard in cases tried
to the bench, would we apply an objective standard—asking
whether the issues are within the common knowledge of a
hypothetical ordinary and reasonable trial judge—or would we
20210786-CA 12 2023 UT App 82Kendall v. Utah Estate Planners
apply a subjective standard—asking whether the issues are within
the common knowledge of the particular judge who happens to
be assigned to the case in question? Both approaches present
practical problems.
¶25 Use of an objective standard would “require reviewing
courts to determine whether the trial judge possessed the
knowledge of some theoretical ordinary judge, a creature far more
difficult to define than an ordinary person.” Lentino, 611 F.2d at481 n.12. And it would not account for a situation where, for
whatever reason, the judge assigned to the case is less familiar
with the law in a particular field than other more experienced
judges might be. See Cleckner, 719 S.W.2d at 542 (“A trial judge,
solely by virtue of the office, does not possess sufficient familiarity
with all legal endeavors to enable the judge to testify
authoritatively concerning the proper standard of conduct for
each case.”). And use of a subjective standard would “require
appellate courts to undertake the unwanted task of evaluating the
trial judge’s personal knowledge.” Lentino, 611 F.2d at 481.
¶26 Finally, adopting the approach Trustees advocate would
create divergent standards for bench and jury trials, which we do
not believe is necessary, and would create uncertainty within the
law. See id. (“[I]n the interest of uniformity, we prefer not to
unnecessarily establish a different substantive requirement for
bench trials than for jury trials.”).
¶27 We acknowledge that, in some jurisdictions, exceptions
have been made in legal malpractice cases where the alleged
malpractice involved straightforward violations of procedural
rules of court practice, a subject matter presumably within the ken
of all trial judges. See Dixon v. Bromson & Reiner, 898 A.2d 193, 196
(Conn. App. Ct. 2006) (recognizing an exception in cases tried to
the bench in which “the alleged legal malpractice involved a
failure to follow rules of procedure, such as filing motions and
attending hearings”); cf. Zick v. Krob, 872 P.2d 1290, 1294 (Colo.
20210786-CA 13 2023 UT App 82Kendall v. Utah Estate Planners
App. 1993) (stating that, where “the proffered testimony
concerned matters of legal practice, the trial court was in a
particularly appropriate position to assess whether such
testimony would be helpful in its deliberations” and therefore the
trial court did not abuse its discretion in excluding the testimony
and relying on its own expertise). But even assuming, without
deciding, that Utah law would allow for such an exception, no
such exception would apply in this case because (as discussed
more fully below) the allegations of legal malpractice at issue do
not involve violations of court rules of practice. 76F
7. Part of Trustees’ claims involve allegations that Christensen
violated ethical rules concerning attorney conflict of interest
requirements. See Utah R. Pro. Conduct 1.7. But we have our
doubts that rules governing attorney conflicts of interest are the
sort of “rules of procedure, such as filing motions and attending
hearings,” that have in some states triggered an exception to the
expert requirement in legal malpractice cases tried to the bench.
See Dixon v. Bromson & Reiner, 898 A.2d 193, 196 (Conn. App. Ct.
2006). Court rules regarding “filing motions and attending
hearings” are necessarily within the knowledge of every trial
judge. But rules governing attorney conflicts of interest—whose
nuances are often quite complex—might not be. See, e.g.,
NanoLogix, Inc. v. Novak, No. 4:13-CV-1000, 2016 WL 1170776, at
*10 (N.D. Ohio Mar. 25, 2016) (holding that whether an attorney
“had a potential or actual conflict of interest . . . is a complex issue
involving the rules of professional conduct” and “is not within the
understanding of laymen”). And in any event, Utah law is clear
that “violations of the Rules of Professional Conduct” do not
necessarily “give rise to a cause of action for legal malpractice.”
See Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1291 n.3
(Utah Ct. App.), cert. denied, 919 P.2d 1208 (Utah 1996); see also
Archuleta v. Hughes, 969 P.2d 409, 414 (Utah 1998) (“The Utah
Rules of Professional Conduct are not designed to create a basis
for civil liability.”).
20210786-CA 14 2023 UT App 82Kendall v. Utah Estate Planners
¶28 In sum, for the reasons here discussed, in our view it would
be imprudent to adopt a different standard for evaluation of the
necessity of expert testimony in legal malpractice cases tried to the
bench than in similar cases tried to juries. We therefore agree with
the other jurisdictions to have considered the issue, and conclude
that the same standard regarding necessity of expert testimony
should generally apply in all legal malpractice cases, without
regard to whether those cases are tried to the bench or to a jury.
II
¶29 Trustees next assert that, even under the usual standard
applied in jury cases, the district court erred in concluding that
expert testimony was necessary to support Trustees’ legal
malpractice claims against Christensen, and therefore erred in
dismissing Trustees’ claims for failure of proof. We discern no
error in the district court’s conclusions.
¶30 As noted above, expert testimony is required in cases
“where the average person has little understanding of the duties
owed by particular trades or professions, including duties owed
by practicing attorneys to their clients, especially in cases
involving complex and involved allegations of malpractice.”
Kirkham v. McConkie, 2018 UT App 100, ¶ 8, 427 P.3d 444(quotation simplified). “Expert testimony is unnecessary only in
cases where the defendant’s conduct is within the common
knowledge and experience of the layman” or, in other words,
where “an average bystander would be able to provide the same
testimony.” Id. (quotation simplified).
¶31 For example, in Kirkham, a plaintiff alleged that his former
attorneys had committed malpractice by failing to respond to a
petition to modify child support by filing a counterpetition
seeking a different modification of child support in favor of their
client. Id. ¶ 2. When the plaintiff did not designate an expert
witness in support of the legal malpractice claim, the former
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attorneys moved for summary judgment, which the trial court
granted. Id. ¶ 4. On appeal, we affirmed the trial court’s rulings,
concluding that “the average juror would not know whether an
attorney with ordinary skill and capacity would have filed a
counterpetition under the same circumstances of this case.” Id.
¶ 10. We noted that, “without the help of an expert, jurors would
be hard pressed to understand how the Utah Rules of Civil
Procedure and the Utah Child Support Act operate together and
whether an attorney would have been expected to file a
counterpetition” under the circumstances presented. Id.
(quotation simplified). And we stated that “these issues require a
level of expertise in the field of family law, and an expert was
therefore necessary to aid the jury in identifying the attorney
standard of care for filing petitions to modify child support.” Id.;
see also Preston & Chambers, PC v. Koller, 943 P.2d 260, 264 (Utah
Ct. App. 1997) (affirming a court’s dismissal of a legal malpractice
claim for lack of expert testimony where the “allegations included
claims concerning water rights, eminent domain, and negligent
services,” and agreeing with the trial court’s statement that “to
suggest that the claims are so obvious that no attorney or expertise
would be necessary is . . . not credible”).
¶32 Trustees are, however, correct in asserting that expert
testimony is not always required in legal malpractice cases. If an
attorney’s error is obvious, even to a layperson, a plaintiff is
entitled to present the case to the factfinder even without the
assistance of a legal expert witness. See Kirkham, 2018 UT App 100,
¶ 8. In malpractice cases involving other professionals, such as
medical doctors, Utah courts have applied this exception, holding
that expert testimony was not required to establish the standard
of care in a medical malpractice case in which a surgeon lost a
“curved cutting needle[]” inside a patient, reasoning that it “is
within the common knowledge and experience of the layman”
that such conduct fell below the appropriate standard of care.
Nixdorf v. Hicken, 612 P.2d 348, 351–52 (Utah 1980).
20210786-CA 16 2023 UT App 82Kendall v. Utah Estate Planners
¶33 In legal malpractice cases involving attorney mistakes
analogous to a surgeon leaving a needle inside a patient, a
plaintiff will not be required to present expert testimony in order
to establish a breach of the standard of care. At oral argument
before this court, Christensen’s attorney provided an example of
one situation in which an attorney’s malpractice would be
obvious even to a layperson: when an attorney steals money from
a client. And we can certainly envision other similar examples.
See, e.g., Sandhu v. Kanzler, 932 F.3d 1107, 1116 (8th Cir. 2019)
(stating that legal malpractice claims “premised on
straightforward acts or omissions such as an obviously missed
deadline or a clear case of stealing client funds” would not need
to be supported by expert testimony (quotation simplified)); Boyle
v. Welsh, 589 N.W.2d 118, 127 (Neb. 1999) (stating that “failure to
file a suit that should otherwise be filed within the time required
by the statute of limitations is a deviation from the standard of
care falling within the common knowledge exception,” but
holding that the exception did not apply if there existed a
legitimate question about whether the case should have been filed
at all against the particular defendant in question); cf. Reperex, Inc.
v. Coldwell Banker Com., 2018 UT 51, ¶¶ 38, 40, 428 P.3d 1082(holding, in a breach of fiduciary duty case not involving alleged
attorney malpractice, that a broker who “misrepresent[ed]
material information to a buyer” had breached fiduciary duties in
a manner “within the common understanding of a lay person”).
¶34 Trustees assert that the malpractice they allege against
Christensen falls into the “obvious” category, and that any
layperson should be able to tell, even without the assistance of a
legal expert, that Christensen violated professional standards of
care. While we acknowledge that, at some level, resolution of this
inquiry depends on how the malpractice allegations are framed,
we disagree with Trustees’ contention that the attorney mistakes
they allege are, under these circumstances, so clear as to be
obvious to any layperson.
20210786-CA 17 2023 UT App 82Kendall v. Utah Estate Planners
¶35 In an effort to make their malpractice allegations seem as
obvious as possible, Trustees characterize Christensen’s alleged
mistakes as follows: they say Christensen should have
“(1) communicated advice to Taylor on the proper . . . allocation
of RMDs or made sure Taylor applied that advice; (2) ensured that
Taylor followed [Christensen’s] determinations on the
proscription against distributing principal to the prior beneficiary
of [the Trust]; (3) followed the spendthrift provisions of the [w]ill
and [the] Trust and Utah law; and (4) not engaged in obvious
conflicts of interest.” But even so characterized, these allegations
of attorney wrongdoing, viewed in context, are not so clear as to
be obvious to a layperson.
¶36 To determine how “an attorney with ordinary skill and
capacity” should have acted “under the same circumstances of
this case,” Kirkham, 2018 UT App 100, ¶ 10, the factfinder must be
able to understand several interrelated aspects of the many
requirements governing attorney conduct. For instance, the
factfinder must be able to understand how the terms of the Trust
governing distributions of principal and income interact with the
requirements of the UPIA. In addition, the factfinder must know
whether and to what extent attorneys are obligated to follow up
with clients to make sure previously given advice is being
followed. And the factfinder must understand the ethical rules
and standards that govern potential conflicts of interest. In our
view, these areas of knowledge and understanding are not only
well outside the “common knowledge and experience of the
layman,” see id. ¶ 8 (quotation simplified), but they are outside the
common knowledge and experience of many attorneys and
judges. In this case, Christensen has done far “more than gesture
vaguely at the complexity of the transaction” in question. See
Reperex, 2018 UT 51, ¶ 43. Rather, Christensen has persuaded us,
like the district court, that the malpractice allegations here are
outside the ordinary understanding of a layperson, and that
20210786-CA 18 2023 UT App 82Kendall v. Utah Estate Planners
expert testimony would not only have been helpful, 8 but was
7F
required, to illuminate and support Trustees’ claims. This is
simply not a case in which “an average bystander would [have
been] able to provide the same testimony” as an expert retained
to discuss the professional duties owed by a trusts and estates
lawyer and, specifically, to opine on whether Christensen had
breached those duties and caused damages. See Kirkham, 2018 UT
App 100, ¶ 8 (quotation simplified). And given this conclusion, it
follows that the district court did not err by dismissing Trustees’
legal malpractice claims for failure of proof. 9
8F
8. The district court, in its ruling, stated that “expert testimony”
regarding whether Christensen had breached the standard of care
“would help the trier of fact.” Trustees assert—correctly—that, in
this context, it is “not enough” for the district court to conclude
that expert testimony would be “helpful.” Helpfulness is a
necessary element of admissibility of expert testimony. See Utah
R. Evid. 702(a). But just because expert testimony is admissible
does not mean that it is required. As we read the record, however,
the district court understood this distinction; we read the court’s
allusion to “helpfulness” as simply an indication that the attorney
malpractice alleged by Trustees was not necessarily within the
district court’s own set of knowledge, and therefore definitely not
within the ken of a typical lay person.
9. Trustees also assert that the district court, by determining that
Trustees’ malpractice allegations were complex and not within
the knowledge of a lay juror, made a factual determination that
should have been reserved for the factfinder after trial. This is
incorrect. The question of whether the allegations are complex (or,
alternatively, present obvious issues within a lay juror’s
knowledge) is a threshold question that must be decided by the
court as a matter of law. The district court was required to engage
with the question in order to decide Christensen’s motion for
summary judgment, and did not err by doing so.
20210786-CA 19 2023 UT App 82Kendall v. Utah Estate Planners
CONCLUSION
¶37 The district court applied the correct standard for
evaluating whether Trustees needed expert testimony to support
their legal malpractice claims. And in applying that standard, the
court did not err by concluding that expert testimony was indeed
required. Accordingly, we affirm the district court’s summary
judgment order dismissing Trustees’ legal malpractice claims.
20210786-CA 20 2023 UT App 82