Common Knowledge Exception

No Liability Ruling in Favor of Attorney in Legal Malpractice Trial Upheld by Indiana Appellate Court

It’s fairly rare to see cases handled by a pro se plaintiff reach trial if the defendant is represented by counsel.  A plaintiff handling a legal malpractice case pro se and reaching trial is almost unheard of.  While the Plaintiff in Miletic v. O’Brien, was able to survive summary judgment, he wound up short in proving his legal malpractice case at trial.  2017 Ind. App. Unpub. LEXIS 1606 (Ind. App. Ct. 2017).

In this case, Miletic was represented by O’Brien in her divorce to Dragan Miletic (“Dragan”).  While the divorce was pending, Miletic was diagnosed with cancer, went on disability, and had no other income.  When completing his financial declaration forms, Dragan indicated that he was also unemployed.  But, he was maintaining health insurance for Miletic through COBRA.

Prior to the parties’ dissolution, Dragan moved to California for employment.  O’Brien filed a Verified Petition for Maintenance Due to Spousal Incapacity requesting that Dragan pay Miletic “a reasonable monthly maintenance, in addition to continuation of the COBRA.”  Thereafter, the court held a final hearing on the dissolution. During the proceedings Miletic and Dragan informed the court that they had reached an agreement on all of the issues.  The parties represented that everything had already been divided and Dragan agreed to continue provide health insurance for Miletic until she was healthy or obtained her own.  However, she would not receive any other form of spousal maintenance.  Miletic represented to the court that she understood the terms of this agreement and would abide by it.

Thereafter, the court requested that O’Brien memorialize the terms of the agreement.  A few months later, the court was informed that O’Brien was subsequently terminated by Miletic and refused to sign an agreement with the terms agreed upon before the trial court earlier.  The trial court would eventually enter an order consistent with those terms.  Miletic subsequently filed a legal malpractice claim against O’Brien where she claimed that he breached his duty of care by failing to obtain monthly spousal support payments from Dragan.  Additionally, Miletic alleged that O’Brien failed to properly conduct discovery and if he had he would have learned that Dragan was “earning over $164,00 per year” and she therefore would have obtained maintenance.

O’Brien filed a motion for summary judgment which the trial court denied and the case proceeded to a bench trial.  After Miletic’s case-in-chief, O’Brien moved for directed verdict which the court granted because Miletic failed to meet her burden of proof by not providing any expert testimony to establish that O’Brien deviated from the standard of care.

An appeal followed where Miletic argued that the common knowledge exception applied in her case and she therefore did not require expert testimony to prove her claim.  The common knowledge exception applies when the attorney’s negligence is so grossly apparent that a non-attorney would have no difficulty in understanding a breach occurred.  Storey v. Leonas, 904 N.E.2d 229, 238 (Ind. App. 2009).  Typically, the exception arises in cases where an attorney fails to file a case within the applicable statute of limitations period and the claim is then barred.  The appellate court was not persuaded by this argument, indicating that the common knowledge exception only applies to obvious cases.  However, at trial and in her briefs Miletic failed to address the fact that she represented to the court that she understood the terms of the settlement and approved it.  Therefore, the common knowledge exception could not apply and an expert was required to explain how O’Brien breached his duty of care.

Alex and the Patterson Law Firm, LLC handle legal malpractice cases throughout Illinois and Indiana.  If you have a matter you would like to discuss with Alex, you can reach him at (312) 750-1820 or