Opinion
C.A. No. 02C-07-203 JRS
Date Submitted: March 26, 2003
Date Decided: June 3, 2003
Upon Consideration of Plaintiff's Motion for the Court to Consider the Subpoena of Legal Malpractice Expert Witness As its Own Witness. DENIED.
ORDER
On this 3rd day of June, 2003, upon consideration of the Plaintiffs "Motion for the Court to Consider the Subpoena of a Legal Malpractice Expert as its Own Witness" filed by Plaintiff, Nikerray Middlebrook ("Mr. Middlebrook"), it appears to the Court that:
1. Mr. Middlebrook is currently an indigent prisoner detained at the Delaware Correctional Center. He has brought this legal malpractice action pro se against his former attorney, Caroline Ayres, Esquire ("Ms. Ayres"), alleging that she rendered grossly negligent legal services. He requests assistance from the Court in procuring expert testimony required by Delaware law to support his legal malpractice claim. Specifically, Mr. Middlebrook requests the Court to subpoena a legal malpractice expert under Delaware Uniform Rule of Evidence 614 ("DRE 614") and Delaware Superior Court Civil Rule 45(a) or, in the alternative, to take judicial notice of several judicial opinions and attorney correspondence involving Ms. Ayres pursuant to Delaware Uniform Rule of Evidence 201 and 202 ("DRE 201 and 202").
See Giordano v. Heiman, 2001 Del. LEXIS 20, at *2-3 ("It is well settled under Delaware law that claims of legal malpractice must be supported by expert testimony.").
DEL. SUPER. CT. Civ. R. 45(a) ("Subpoena").
DEL. UNIF. R. EVID. 201 and 202.
2. Mr. Middlebrook first requests the Court to subpoena an expert under DRE 614. DRE 614 sets forth the procedure by which the Court may call and interrogate witnesses. The purpose of DRE 614 is to "give trial courts power to present evidence by calling and interrogating witnesses." The Court's power to participate directly in the interrogation of witnesses must be tempered by the reality that its interference in the parties' presentation of evidence may well jeopardize the adversarial nature of the trial process. Accordingly, the Court should use its power to interrogate witnesses "sparingly and only after the use of more conventional judicial powers have been considered." Examples of appropriate instances to use DRE 614 are "where counsel have omitted important evidence or where their presentation of evidence is confusing, misleading, or otherwise requires clarification."
See DEL. UNIF. R. EVID. 614 ("(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. . . .") (emphasis in original).
29 CHARLES A. WRIGHT VICTOR J. GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6232 (1997).
See, e.g., id. ("However, if a judge is too aggressive in applying those [Rule 614] powers, he may lose his impartiality and become an advocate himself, thereby undermining the efficacy of the adversary system and jeopardizing these same policy goals."); Price v. Blood Bank of Delaware, Inc., 790 A.2d 1203, 1210 (Del. 2002)("The need for a judge to exercise self-restraint and preserve an atmosphere of impartiality in the questioning of an expert witness [under DRE 614] arises from the judge's absolute duty of neutrality.").
29 WRIGHT GOLD, supra note 6, § 6234.
29 Id. § 6232.
3. In this motion, Mr. Middlebrook asks the Court to act beyond the authority conferred by DRE 614. Mr. Middlebrook does not want the Court to call or interrogate a witness for clarification. Instead, he wants the Court to provide a witness to substantiate his claim. The idea of a court supplying evidence for one party to the detriment of another is patently offensive to the adversarial process. The Supreme Court of Delaware has rejected this same proposition in the context of a medical malpractice case. In Walls v. Cooper, Mr. Walls brought a medical malpractice claim against several employees of the Delaware Correctional Center. On appeal, Mr. Walls argued that the trial court violated his right to due process and DRE 614's mandate by refusing to appoint and fund a medical expert. The Court disagreed, stating that the "courts of Delaware do not appoint experts to testify for either party in civil actions, and no funds are available for such appointments." The Court also noted that DRE 614's language was permissive and implied no obligation on the part of the trial court to appoint an expert. Based on the foregoing, the Court will decline to inject itself improperly into this litigation as either as an advocate for Mr. Middlebrook's cause, or as a facilitator of his requisite proofs.
1991 Del. LEXIS 383 (Del.Supr.).
Id. at *15-18.
Id. at *15.
Id. at *17.
Mr. Middlebrook did not bring this motion under DRE 706, which permits the Court to appoint an expert and divide the expert's costs among the parties. DEL. UNIF. R. EVID. 706. The Court briefly notes that DRE 706 also does not provide a basis for Mr. Middlebrook's motion. See 29 WRIGHT GOLD, supra note 6, § 6302 (1997)("While Rule 706 fails to provide a standard by which the exercise of the court's discretion should be judged, the policy goal of accurate factfinding supplies sufficient guidance. Thus, Rule 706 powers are properly invoked where the issues are complex and the parties' experts have presented conflicting testimony that is difficult to reconcile or have otherwise failed to provide a sufficient basis for deciding the issues."). Again, there is nothing in DRE 706 to suggest that the Court may intercede as an advocate for either party.
4. Mr. Middlebrook's request that the Court take judicial notice of two letters involving Ms. Ayres must also be rejected. In the first letter, an attorney expresses the view that Ms. Ayres violated the Delaware Rules of Professional Conduct. In the second letter, a different attorney briefly discusses the merits of Mr. Middlebrook's legal malpractice claim. These letters are wholly inappropriate for judicial notice under DRE 201 and 202. Clearly, the letters are not cases or statutes; hence, DRE 202 does not apply. DRE 201 applies to "adjudicative facts" which is a fact "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." The letters proffered by Mr. Middlebrook do not contain "adjudicative facts" as defined in DRE 201. The letters, at most, express the view that Ms. Ayres may have violated the Delaware Rules of Professional Conduct. Yet, it is well settled that a violation of the Delaware Rules of Professional Conduct "does not give rise to a cause of action nor should it create any presumption that a legal duty has been breached."
The first letter is from an attorney offering to help Mr. Middlebrook prepare a postconviction motion and discussing the merits of his legal malpractice action. The second letter is from another attorney refusing to represent Mr. Middlebrook in this legal malpractice action.
See DEL. UNIF. R. EVID. 202 (permitting judicial notice of federal and state cases and statutes).
Flaig v. Ferrara, 1996 Del. Super. LEXIS 169, at *6 (quoting DEL. R. PROF. C. Scope.)
5. If Mr. Middlebrook wishes to file a renewed motion to request the Court to take judicial notice of the two judicial opinions appended to his motion, or any other case authority, he may do so at a date closer to trial. Judicial notice of case law, however, will not obviate the requirement that Mr. Middlebrook produce expert testimony in support of his legal malpractice claim.
See Jackson v. Lobue, 2001 Del. LEXIS 432, at *2 (Del.Supr.) (stating that legal malpractice claim must be supported by competent expert testimony).
6. Based on the foregoing, Mr. Middlebrook's Motion is DENIED.
IT IS SO ORDERED.