" Plaintiff's motion also cites House v. Maddox (1977), 46 Ill. App.3d 68, 360 N.E.2d 580, as support for the proposition that expert testimony was unnecessary to establish negligence because the guilt of defendant for legal malpractice "was so grossly apparent that a layman would have no difficulty in appraising it." Appended to plaintiff's motion is a copy of an application by plaintiff to the Chicago Bar Association for consultation with an attorney under the Lawyer Reference Plan. Plaintiff also filed a motion to strike defendant's affidavit for summary judgment on the ground that it was not made upon the personal knowledge of the affiant and that it sought to review the same matter that was adjudicated by the court of appeals in Brainerd.
ANALYSIS Attorneys are liable to their clients for damages in malpractice actions only when they fail to exercise a reasonable degree of care and skill. ( Gray v. Hallett (1988), 170 Ill. App.3d 660, 663; Gelsomino v. Gorov (1986), 149 Ill. App.3d 809, 813; Schnidt v. Henehan (1986), 140 Ill. App.3d 798, 801; Spivack, Shulman Goldman v. Foremost Liquor Stores, Inc. (1984), 124 Ill. App.3d 676, 683; Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban Fuller (1979), 75 Ill. App.3d 516, 522; House v. Maddox (1977), 46 Ill. App.3d 68, 71; Kasten, Attorney Malpractice in Illinois: An Early Chapter in a Book Destined for Great Length, 13 J. Marshall L. Rev. 309, 314 (1980) (hereinafter Attorney Malpractice in Illinois).) The law distinguishes between errors of negligence and those of mistaken judgment.
Nettleton, 387 Ill. App. 3d at 757. Here, plaintiffs argue, citing House v. Maddox, 46 Ill. App. 3d 68 (1977), that expert testimony is not required, because lay persons can easily assess when the statute of limitations runs against the client. The court in House held that expert opinion is not required where (1) no issue is raised as to the defendant's responsibility for allowing the statute of limitations to run, (2) the defendant's negligence is apparent and undisputed, and (3) the record discloses obvious and explicit carelessness in the defendant's failure to meet the standard of care.
Illinois courts, however, have carved out a niche from this general requirement, known as the βcommon knowledge rule.β See, e.g., House v. Maddox, 46 Ill.App.3d 68, 4 Ill.Dec. 644, 360 N.E.2d 580, 584 (Ill.App.Ct. 1st Dist.1977). Under the common knowledge rule, expert testimony is not required β[w]here no issue is raised as to defendant's responsibility for allowing the statute of limitations to run, where the negligence of defendant is apparent and undisputed, and where the record discloses obvious and explicit carelessness in defendant's failure to meet the duty of care owed by him to plaintiff[.]β Brainerd v. Kates, 68 Ill.App.3d 781, 25 Ill.Dec. 315, 386 N.E.2d 586, 589 (Ill.App.Ct. 1st Dist.1979) (quoting House, 4 Ill.Dec. 644, 360 N.E.2d at 584).
Illinois Appellate Court decisions have held that, as a general rule, expert testimony is required to establish the standard of care and its breach in legal malpractice cases; but where the attorney's negligence is so grossly apparent that a layman would have no difficulty in recognizing it, expert testimony is not required. ( Gray v. Hallett (1988), 170 Ill. App.3d 660, 663, 525 N.E.2d 89; Schmidt v. Hinshaw, Culbertson, Moelmann, Hoban Fuller (1979), 75 Ill. App.3d 516, 522, 394 N.E.2d 559; House v. Maddox (1977), 46 Ill. App.3d 68, 71-73, 360 N.E.2d 580.) Expert testimony has been held to be unnecessary in Illinois only in cases where the attorney has failed to comply with the statute of limitations ( House v. Maddox (1977), 46 Ill. App.3d 68, 360 N.E.2d 580), where the attorney failed to obtain service on a defendant before the statute of limitations ran ( Gray v. Hallett (1988), 170 Ill. App.3d 660, 525 N.E.2d 89), and where the attorney failed to take any action whatsoever in connection with estate matters entrusted to him ( Sorenson v. Fio Rito (1980), 90 Ill. App.3d 368, 413 N.E.2d 47).
[Citations.] However, where `the negligence is so grossly apparent * * * that a layman would have no difficulty in appraising it' [citation] * * *, as where the record discloses such an obvious, explicit, and undisputed breach of the attorney's duty of care as letting the statute of limitations run, expert testimony as to the applicable standard of care will not be required. [citations]" 75 Ill. App.3d 516, 522. ( 83 Ill. App.3d 566, 571-72, 404 N.E.2d 516, 521; see also House v. Maddox (1977), 46 Ill. App.3d 68, 73, 360 N.E.2d 580, 584.) In Schmidt, which was decided for the defendant attorney on summary judgment, the plaintiff attempted to bring his case without expert opinion relying upon the "common knowledge exception" in order to create an issue of material fact for the jury.
"The law is well settled that an attorney is liable to his client for damages only when he fails to exercise a reasonable degree of care and skill, and the law distinguishes between negligence and mere errors of judgment. ( Stevens v. Walker Dexter (1870), 55 Ill. 141; Brainerd v. Kates (1979), 68 Ill. App.3d 781, 386 N.E.2d 586; House v. Maddox (1977), 46 Ill. App.3d 68, 360 N.E.2d 580.) The question of whether an attorney has exercised a reasonable degree of care and skill is one of fact ( e.g., Brown v. Gitlin (1974), 19 Ill. App.3d 1018, 313 N.E.2d 180), and in Illinois the standard of care against which the attorney's conduct will be measured must generally be established through expert testimony.
The exception to the requirement for expert testimony is when "the common knowledge or experience of lay persons is extensive enough to recognize or infer negligence from the facts, or where an attorney's negligence is so grossly apparent that a lay person would have no difficulty in appraising it." Barth, 546 N.E.2d at 1200; see also House v. Maddox, 360 N.E.2d 580, 584 (Ill. App. Ct. 1st Dist. 1977). Illinois courts refer to this as the "common-knowledge" exception. The example that the Illinois Supreme Court gave of an instance when expert testimony would not be needed is when "the attorney's alleged negligent act involved a failure to meet a widely recognized time deadline."
Belden v. Emmerman, 203 Ill.App.3d 265, 268 (1990). "The question of whether an attorney has exercised a reasonable degree of care and skill in representing and advising his client is one of fact [citations], and in Illinois the standard of care against which professional actions are measured has been based on expert testimony." House v. Maddox, 46 Ill.App.3d. 68, 71 (1977). "[A]n attorney is liable to his client only when he fails to exercise a reasonable degree of care and skill; he is not liable for mere errors of judgment."
Id. There are two exceptions to the rule, specifically where the professional's conduct is so grossly negligent, or the procedure is so common, that the jury can readily appraise it without expert testimony. Id. ΒΆ 23 Schwartz notes that the former exception of gross negligence has been applied to an attorney's failure to file an action before the statute of limitations had run (House v. Maddox, 46 Ill. App. 3d 68, 73 (1977)) and the failure to obtain service of process within a limitations period (Gray v. Hallett, 170 Ill. App. 3d 660, 664 (1988)). Schwartz argues that the jury here would face a set of facts that would even more clearly show misrepresentation, namely that Brennan repeatedly assured Jacobs that Fireman's Fund's insurance policy for Loomcraft included selling price coverage that would apply to Loomcraft's goods, even though Brennan knew that this was not true. Schwartz questions what an expert would add to this evidence, because the fact that an underwriter should correctly describe the coverage would already be apparent to the jury.