We disagree. Although normally New Hampshire law requires expert testimony to establish duty in a malpractice action, see Wong v. Ekberg, 148 N.H. 369, 807 A.2d 1266, 1270-71 (2002); Follender v. Scheidegg, 142 N.H. 192, 698 A.2d 1237, 1238 (1997), an exception is made where the existence of a duty ought to be "'so patent and conclusive that reasonable persons can reach only one conclusion.'" See Wong, 807 A.2d at 1271 (citation omitted); accord O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982) (describing "common knowledge" exception to expert-testimony rule).
Thus, although we have stated that expert testimony is generally required in legal malpractice cases, we have not foreclosed the possibility that a plaintiff may prove the elements of legal malpractice without expert testimony. 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).
Also, โin most instances, expert testimony is required to prove causation in a legal malpractice action.โ Carbone, 151 N.H. at 528. Specifically, โexpert testimony may not be required when the evidence of negligence is so patent and conclusive that reasonable persons can reach only one conclusion,โ but it is required when the adequacy of the attorney's actions are โnot a matter of common knowledge . . . .โ Wong v. Ekberg, 148 N.H. 369, 374 (2002) (internal quotation omitted); see alsoCarbone, 151 N.H. at 528 (noting, with respect to the causation element of a legal malpractice claim, that โ[u]nless the causal link is obvious or can be established by other evidence, expert testimony may be essential to prove what the lawyer should have done.โ)
"[A]n action for legal malpractice may be framed conceptually either as a tort or a breach of contract." Wong v. Ekberg , 148 N.H. 369, 376, 807 A.2d 1266, 1272 (2002)(quoting Peters v. Simmons , 87 Wash.2d 400, 404, 552 P.2d 1053, 1055 (1976)). In New Hampshire, such an action can be brought under either theory, but "the same facts often support both causes of action and the remedies for them will usually not differ."
And, "New Hampshire does not recognize a cause of action for negligent performance of a contract." Wong v. Ekberg, 148 N.H. 369, 375 (2002); cf. Bell v. Liberty Mut. Ins. Co., 146 N.H. 190, 195 (2001) ("We also decline the plaintiff's invitation to overruleLawton v. Great Sw. Fire Ins. Co., 118 N.H. 607 (1978), and recognize a tort claim for bad faith delay or refusal to settle a first-party insurance claim."). Because the contract in this case did not "involve [] a fiduciary duty on the part of [Harvard Pilgrim]," Wong, 148 N.H. at 375, and "the facts constituting the breach of contract [do not] also constitute a breach of a duty owed by the defendant to the plaintiff independent of the contract," id., plaintiff has failed to state a claim for negligent infliction of emotional distress based upon Harvard Pilgrim's alleged failure to pay the settlement amount in a timely fashion.
Holder's state law claims include a variety of negligence claims, breach of contract claims, a fraud claim, and a claim for intentional infliction of emotional distress. Although Holder asserts legal malpractice under both negligence and breach of contract theories, the claims are not conceptually distinct.Wong v. Ekberg, 148 N.H. 369, 376-77 (2002). As Gienapp points out, under New Hampshire law, "absent exceptional circumstances, expert testimony is necessary to inform the jury regarding the skill and care ordinarily exercised by lawyers and to prove a breach thereof."
Silva v. Warden, N.H. State Prison, 150 N.H. 372, 374 (2003). These general principles are applicable to legal malpractice actions. See, e.g., Wong v. Ekberg, 148 N.H. 369, 373-74 (2002). To establish legal malpractice, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach.
In a superior court action, a party is entitled to disclosure of the opposing party's experts, the substance of the facts and opinions about which they are expected to testify and the basis of those opinions. Wong v. Ekberg, 148 N.H. 369, 372 (2002); see also SUPER. CT. R. 35(f). Failure to supply this information should result in exclusion of the expert testimony unless good cause is shown to excuse the failure to disclose. Wong, 148 N.H. at 372.
A contract cause of action for failure to exercise due care in the performance of a contractual duty must be distinguished from a tort cause of action for "negligent performance of a contract," a cause of action New Hampshire courts have consistently rejected. (See Wong v. Ekberg (2002) 148 N.H. 369, 375 [807 A.2d 1266, 1272] [distinguishing these causes of action].) This is somewhat contradicted by article IX, paragraph 3(d) of the agreement, which states: "NOTHING IN THIS AGREEMENT IS INTENDED TO OR SHALL IMPOSE OR CONFER, BY IMPLICATION OR OTHERWISE, ANY FIDUCIARY DUTY OR RESPONSIBILITY ON PENSCO TRUST."
The difficulty with the plaintiffs' argument is that a breach of contract action against an attorney, on the basis of an implied contract is, essentially, governed by the same principles as a negligence action, and both are predicated on the standard of care applicable to the attorney. See Wong v. Ekberg, 148 N.H. 369, 376, 807 A.2d 1266 (2002); Peters v. Simmons, 87 Wash.2d 400, 404, 552 P.2d 1053 (1976); 1 R. Mallen J. Smith, supra, ยง 8.7, pp. 819-20. Contrary to the plaintiffs' position, an attorney does not, by agreeing to represent or to provide professional services to a client, impliedly contract to see the client's claim through to conclusion.