Defendant Attorney May Support His Motion for Summary Judgment with His Own Affidavit of No Negligence

MULERO v. SCHOENHORN (Sup. Ct. Conn., May 9, 2012)

The plaintiff, a pro se litigant, sued the defendant attorney for damages in connection with the defendant’s representation of the plaintiff on an appeal from his criminal conviction for forgery in the second degree.

The plaintiff filed a two-count complaint sounding in breach of contract and legal malpractice as the trial court’s judgment and his conviction were affirmed by the Appellate Court. The defendant attorney moved for summary judgment arguing that he did not breach the standard of care in his representation of the plaintiff. In support of his motion, the defendant attorney attached his own affidavit in which he averred that “based on his training and experience, my representation of Mr. Mulero was well above the level of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the legal profession.”

In his opposition, the plaintiff contended that the defendant attorney cannot serve as an expert in his own case. While there is no Connecticut law on point, the court relied on Rodriguez v. Pacificare of Texas, Inc., 980 F.2d1014, 1019 (5th Cir.), cert. denied, 508 U.S. 956 (1993), in which the court held that the fact that the expert witness is a party is properly considered when assessing the witnesses’ credibility.

The court granted the defendant’s motion for summary judgment as it determined that the defendant attorney’s affidavit suffices to discharge his burden as showing the absence of material facts as to whether he breached the standard of care. Additionally, as the plaintiff provided no facts to prove a genuine issue of material fact, he did not sustain his burden of opposing the motion for summary judgment.

Impact: Serious consideration should be given to filing a motion for summary judgment soon after a pro se plaintiff files his complaint to see if the plaintiff can determine the need for an expert witness and retain a legal standard of care expert witness who will provide sufficient facts to oppose the defendant’s summary judgment motion.