Although not considering the requirements of a certificate of review statute, courts in numerous other states have addressed a related question and concluded that expert testimony is not required to establish an attorney's negligence in failing to file a client's claim within the applicable statute of limitations. See O'Neil v. Bergan, 452 A.2d 337 (D.C. 1982) (allowing the statute of limitations to run on a client's claim is such an act that the care and skill required is within the jury's common knowledge); Allyn v. McDonald, 112 Nev. 68, 910 P.2d 263, 266 (1996) ("[t]he situation whereby an attorney has allowed the statute of limitations to run against his or her client's cause of action is an example of the sort of negligence so apparent as to make expert evidence as to the standard of care and deviation therefrom unnecessary"); George v. Caton, 93 N.M. 370, 600 P.2d 822, 829 (Ct.App. 1979) ("[i]t does not require expert testimony to establish the negligence of an attorney who is ignorant of the applicable statute of limitations or who sits idly by and causes the client to lose the value of his claim for relief"); Little v. Matthewson, 114 N.C.App. 562, 442 S.E.2d 567 (1994) (claim based on an attorney's failure to file within the applicable statute of limitations is of such a nature that laypersons could determine the standard of care required, a departure therefrom, or proximate causation), aff'd, 340 N.C. 102, 455 S.E.2d 160 (1995); James V. Mazuca Assocs. v. Schuman, 82 S.W.3d 90, 97 (Tex.App. 2002) ("[t]he most common example of a case
Having considered the briefs and record on appeal, we conclude that the district court correctly found that expert testimony was required for Dolmayan to establish the elements of his legal malpractice claim, including breach of the standard of care, causation, and damages. Allyn v. McDonald, 112 Nev. 68, 71-72, 910 P.2d 263, 266 (1996) (explaining that "expert evidence is generally required in a legal malpractice case to establish the attorney's breach of care" and noting that expert testimony also may be required on the causation element); Semenza v. Nev. Med. Liab. Ins. Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185 (1988) (legal malpractice is grounded on "an attorney-client relationship, a duty owed to the client by the attorney, breach of that duty, and the breach as proximate cause of the client's damages"). Here, Dolmayan did not allege and the record does not support that respondents did nothing in representing him in the judgment proceedings, such that breach would be obvious and thus not require expert testimony.
Balkenbush also moved for summary judgment, arguing, as relevant here, that Musall's claims were all effectively legal malpractice claims and that she would not be able to establish the breach-of-duty element of legal malpractice given her failure to disclose a legal malpractice expert. See Allyn v. McDonald, 112 Nev. 68, 72, 910 P.2d 263, 266 (1996) (setting forth the elements of a legal malpractice claim). Musall opposed each of Balkenbush's motions and moved for an extension of time to designate expert witnesses, although her efforts in this regard were not always timely.
Generally, a plaintiff must produce expert testimony to establish the professional standard of care and an attorney's breach of that standard. Boesiger v. Desert Appr., LLC , 135 Nev. 192, 195, 444 P.3d 436, 439 (2019) ; Allyn v. McDonald , 112 Nev. 68, 71, 910 P.2d 263, 266 (1996). Van Dyke did not produce such evidence to establish the professional standard of care or Cogburn's breach of that standard in the underlying malpractice action, and the district court thus granted summary judgment in Cogburn's favor.
"[E]xpert evidence is generally required in a legal malpractice case to establish the attorney's breach of care." Allyn v. McDonald, 112 Nev. 68, 71-72, 910 P.2d 263, 266 (1996). In Allyn, we recognized an exception to this general rule where a lawyer failed to file suit for a client before the statute of limitations ran out, because "the applicable statute of limitations was clear and unambiguous" and the "accrual date of the claim was also not subject to question."
See Wong v. Ekberg, 148 N.H. 369, 374, 807 A.2d 1266 (2002). There may be situations in which an attorney's "negligence is so patent and conclusive that reasonable persons can reach only one conclusion," id. (quotation omitted), and "expert evidence as to the standard of care and deviation therefrom [is] unnecessary," Allyn v. McDonald, 112 Nev. 68, 910 P.2d 263, 266 (1996). See Wagenmann v. Adams, 829 F.2d 196, 219 (1st Cir.1987) (recognizing that "[c]ourts in other jurisdictions have ... dispensed with any expert testimony requirement in egregious cases, especially those in which an attorney fails to act once he has undertaken to represent a client").
Former client filed legal malpractice action against attorney stemming from attorney's failure to file separate personal injury lawsuit against client's former husband following divorce action. After remand reversing grant of summary judgment for attorney, 112 Nev. 68, 910 P.2d 263 (1996), the district court dismissed for failure to prosecute. Client appealed.
In such cases, expert testimony is generally required to establish the breach of a duty and may be required to show causation of damages. Allyn v. McDonald , 112 Nev. 68, 71-72, 910 P.2d 263, 266 (1996) ; seeDolmayan v. Doxey , No. 64089, 2015 WL 5431966, at *1-2 (Nev. Sept. 10, 2015) (Order of Affirmance) (affirming a summary judgment where plaintiff failed to designate an expert to prove duty, breach, and causation in a legal-malpractice action). Here, one of the grounds relied upon by the district court in granting summary judgment was that Bohland failed to support her claim with expert testimony.
Under Nevada law, "[t]he elements for a claim of legal malpractice are the existence of 'an attorney-client relationship, a duty owed to the client by the attorney, breach of that duty, and the breach as proximate cause of the client's damages.'" Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996) (citation omitted). At the moment that Debtors' bankruptcy petition was filed, there clearly was an attorney-client relationship, and Debtors' attorney had breached her duty to her clients by negligently filing the petition too early.
However, expert opinion is required in medical or legal malpractice cases only when the negligence is not “within the ordinary knowledge and experience of a layman.” Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996).