Bozelko v. Papastavros , 323 Conn. 275 ( 2016 )

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CHANDRA A. BOZELKO v. ANGELICA
N. PAPASTAVROS
(SC 19495)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.*
Argued May 4—officially released September 27, 2016
Chandra A. Bozelko, self-represented, the appellant
(plaintiff).
Daniel J. Krisch, with whom, on the brief, were
Thomas P. Lambert and Brian E. Tims, for the appel-
lee (defendant).
Opinion
ZARELLA, J. This case raises the question of whether
a plaintiff’s failure to produce expert testimony on the
issue of causation is fatal to her claims of legal malprac-
tice and breach of fiduciary duty by an attorney. The
plaintiff, Chandra A. Bozelko, appeals from the judg-
ment of the Appellate Court, which affirmed the trial
court’s judgment in favor of the defendant, Angelica N.
Papastavros. The trial court granted the defendant’s
motion for summary judgment after precluding the
plaintiff from presenting expert testimony due to her
failure to disclose an expert witness by a date previously
ordered. The plaintiff contends, inter alia, that summary
judgment was improper because expert testimony was
unnecessary to prove her claims of legal malpractice
and breach of fiduciary duty.1 We disagree and, accord-
ingly, affirm the judgment of the Appellate Court.2
The following facts and procedural history are rele-
vant to this appeal. The defendant served as the plain-
tiff’s defense counsel in a 2007 criminal jury trial.
Following that trial, the plaintiff was convicted of four-
teen offenses3 and acquitted of eight others, and she
received a total effective sentence of ten years imprison-
ment, execution suspended after five years, and four
years of probation. Her convictions were upheld on
direct appeal; State v. Bozelko, 119 Conn. App. 483, 510,
987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d
867 (2010); and she thereafter unsuccessfully sought
habeas relief on the basis of ineffective assistance of
counsel.
In 2007, while awaiting sentencing, the plaintiff filed
the present action against the defendant, alleging legal
malpractice and breach of fiduciary duty in connection
with the defendant’s representation of the plaintiff in
the criminal proceedings.4 The plaintiff’s operative com-
plaint sets forth a number of specific allegations, includ-
ing the defendant’s alleged delay in instituting a written
fee agreement, misrepresentation of the length of her
legal career and criminal trial experience, failure to
familiarize herself adequately with the facts of the case
and the relevant law and procedure, failure to interview
potential witnesses, failure to file certain motions, fail-
ure to deliver a coherent closing argument, failure to
prepare for trial, failure to maintain attorney-client con-
fidentiality, failure to return the plaintiff’s file upon
request, and speaking with the press about confidential
matters without the plaintiff’s authorization.5 The plain-
tiff claimed that these alleged shortcomings had caused
her to suffer damages, which resulted from her criminal
convictions and incarceration.
On March 28, 2013, when the case had been pending
for about six years, the defendant sought leave to file
a motion for summary judgment, which the trial court
denied in light of the fact that trial was scheduled to
commence on June 27, 2013. The court ordered, how-
ever, that the plaintiff disclose an expert witness no
less than forty-five days prior to trial, and it warned
that her failure to do so would result in the preclusion
of expert testimony.6 The court’s order also indicated
that the defendant could renew her motion for summary
judgment in the event that the plaintiff failed to disclose
an expert.
On May 17, 2013, the plaintiff filed an expert witness
disclosure identifying her former habeas counsel as her
expert witness. The defendant moved to preclude that
individual from testifying due to various inadequacies
in the disclosure, and she also renewed her motion for
summary judgment. At a June 11, 2013 hearing, the
plaintiff’s former habeas counsel appeared and testified
that he had not been retained as an expert and had no
expert opinion to offer. The plaintiff failed to identify
any other expert witness. Thereafter, the court issued
an order precluding the plaintiff from offering expert
testimony.
The trial court deferred any decision with respect to
the defendant’s summary judgment motion and permit-
ted the plaintiff to reargue the preclusion order on the
scheduled trial date. At that time, the plaintiff raised
numerous arguments, including that expert testimony
was unnecessary in the present case because her claims
constituted allegations of gross negligence, a recog-
nized exception to the general rule requiring expert
testimony to establish the standard of care in a profes-
sional negligence action. See, e.g., Grimm v. Fox, 303
Conn. 322, 330, 33 A.3d 205 (2012). The trial court, after
reviewing the allegations of the plaintiff’s complaint,
disagreed with the plaintiff’s characterization and con-
cluded instead that expert testimony would be neces-
sary to prove her allegations of negligence. The court
also concluded that an expert would be necessary to
establish causation, namely, ‘‘that any of the things the
defendant allegedly did wrong (whether [the result of]
gross negligence or not) resulted in her conviction or
any of the many harms [the plaintiff] alleges. Nor does
the plaintiff have an expert to opine that different con-
duct of the defendant would have resulted in a different
outcome . . . .’’7 Because the plaintiff lacked an
expert, the trial court granted the defendant’s motion
for summary judgment and rendered judgment thereon
for the defendant.
The plaintiff appealed to the Appellate Court from
the trial court’s judgment, claiming, inter alia, that the
trial court incorrectly had concluded that expert testi-
mony was necessary to prove her allegations.8 See
Bozelko v. Papastavros, 156 Conn. App. 124, 126, 111
A.3d 966 (2015). The Appellate Court rejected that
claim; see id., 132–33; and affirmed the trial court’s
judgment. Id. 138. This appeal followed.
The plaintiff argues that the Appellate Court incor-
rectly concluded that her claims could not have been
proven without expert testimony. She contends that
an expert was unnecessary to establish the applicable
standard of care because her allegations amounted to
claims of gross negligence. The plaintiff also claims that
an expert was unnecessary to prove causation because
the only way to establish that the defendant’s alleged
conduct or omissions had resulted in the plaintiff’s crim-
inal convictions was through the introduction of testi-
mony from the jurors in her criminal trial. According
to the plaintiff, that testimony would have shown that,
if the purported deficiencies in the defendant’s perfor-
mance had not existed, the jurors would not have found
the plaintiff guilty of the offenses of which she was
convicted. Even if we assume, without deciding, that
the plaintiff raised allegations of gross negligence, we
nevertheless conclude that an expert witness was
required to prove that the defendant’s alleged conduct
and omissions, rather than the plaintiff’s guilt of the
crimes charged, were the cause of the plaintiff’s convic-
tions.9 Accordingly, the trial court properly granted the
defendant’s motion for summary judgment.
We begin with general principles and the standard of
review. ‘‘Practice Book § 17-49 provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . Our review of the trial court’s decision to
grant the defendant’s motion for summary judgment is
plenary.’’ (Internal quotation marks omitted.) Arras v.
Regional School District No. 14, 319 Conn. 245, 255,
125 A.3d 172 (2015). Summary judgment in favor of a
defendant is proper when expert testimony is necessary
to prove an essential element of the plaintiff’s case and
the plaintiff is unable to produce an expert witness to
provide such testimony. See, e.g., Grimm v. Fox, supra,
303 Conn. 330; see also Boone v. William W. Backus
Hospital, 272 Conn. 551, 574–75, 864 A.2d 1 (2005).
‘‘Malpractice is commonly defined as the failure of
one rendering professional services to exercise that
degree of skill and learning commonly applied under
all the circumstances in the community by the average
prudent reputable member of the profession with the
result of injury, loss, or damage to the recipient of
those services . . . .’’ (Emphasis added; internal quota-
tion marks omitted.) Updike, Kelly & Spellacy, P.C.
v. Beckett, 269 Conn. 613, 649, 850 A.2d 145 (2004).
Generally, a plaintiff alleging legal malpractice must
prove all of the following elements: ‘‘(1) the existence
of an attorney-client relationship; (2) the attorney’s
wrongful act or omission; (3) causation; and (4) dam-
ages.’’10 (Emphasis added; internal quotation marks
omitted.) Grimm v. Fox, supra, 303 Conn. 329.
‘‘The essential element of causation has two compo-
nents. The first component, causation in fact, requires
us to determine whether the injury would have occurred
but for the defendant’s conduct. . . . The second com-
ponent, proximate causation, requires us to determine
whether the defendant’s conduct is a substantial factor
in bringing about the plaintiff’s injuries. . . . That is,
there must be an unbroken sequence of events that tied
[the plaintiff’s] injuries to the [defendant’s conduct].
. . . This causal connection must be based [on] more
than conjecture and surmise. . . . [N]o matter how
negligent a party may have been, if his negligent act
bears no [demonstrable] relation to the injury, it is not
actionable . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Stuart v. Freiberg, 316 Conn. 809,
833–34, 116 A.3d 1195 (2015).
‘‘The existence of the proximate cause of an injury
is determined by looking from the injury to the negligent
act complained of for the necessary causal connection.’’
(Internal quotation marks omitted.) Grayson v. Wofsey,
Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646
A.2d 195 (1994). In legal malpractice actions arising
from prior litigation, ‘‘the plaintiff typically proves that
the . . . attorney’s professional negligence caused
injury to the plaintiff by presenting evidence of what
would have happened in the underlying action had the
[attorney] not been negligent. This traditional method
of presenting the merits of the underlying action is often
called the ‘case-within-a-case.’ 5 R. Mallen & J. Smith,
Legal Malpractice (5th Ed. 2000) § 33.8, [p. 69].’’ Mar-
golin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n.9,
882 A.2d 653 (2005). More specifically, the plaintiff must
prove that, in the absence of the alleged breach of duty
by her attorney, ‘‘the plaintiff would have prevailed [in]
the underlying cause of action and would have been
entitled to judgment.’’ Haddy v. Caldwell, 403 S.W.3d
544, 546 (Tex. App. 2013), review denied, Texas
Supreme Court, Docket No. 13-0554 (September 20,
2013). To meet this burden, ‘‘the plaintiff must produce
evidence explaining the legal significance of the attor-
ney’s failure and the impact this had on the underlying
action.’’ Id.
This court previously has explained that, as a general
matter, expert testimony is necessary in legal malprac-
tice cases in order to establish the standard of care,
against which the attorney’s conduct should be evalu-
ated by the jury. See, e.g., Grimm v. Fox, supra, 303
Conn. 329–30.11 We conclude that, although there will
be exceptions in obvious cases,12 expert testimony also
is a general requirement for establishing the element
of causation in legal malpractice cases.13 Because a
determination of what result should have occurred if
the attorney had not been negligent usually is beyond
the field of ordinary knowledge and experience pos-
sessed by a juror, expert testimony generally will be
necessary to provide the essential nexus between the
attorney’s error and the plaintiff’s damages.14 See, e.g.,
Kranis v. Scott, 178 F. Supp. 2d 330, 334 (E.D.N.Y. 2002)
(expert testimony on causation in legal malpractice
cases is required unless connection falls within ordinary
experience of fact finder); Allen v. Martin, 203 P.3d 546,
569 (Colo. App. 2008) (‘‘causation in a legal malpractice
action must be proved by expert testimony, unless cau-
sation is within the jury’s common understanding’’),
cert. denied, Colorado Supreme Court, Docket No.
08SC592 (March 2, 2009); Samuel v. Hepworth, Nunges-
ter & Lezamiz, Inc., 134 Idaho 84, 88–89, 996 P.2d 303
(2000) (expert testimony on causation in legal malprac-
tice case is required when factors involved are not
within ordinary knowledge and experience of layper-
sons); Meyer v. Purcell, 405 S.W.3d 572, 578 (Mo. App.
2013) (‘‘[e]xpert testimony is required to prove proxi-
mate causation in [connection with] legal malpractice
claims except in a ‘clear and palpable’ case’’); Carbone
v. Tierney, 151 N.H. 521, 528, 864 A.2d 308 (2004)
(‘‘expert testimony on proximate cause is required in
[legal malpractice] cases [in which] determination of
that issue is not one that lay people would ordinarily
be competent to make’’ [internal quotation marks omit-
ted]); 5 R. Mallen & J. Smith, supra, § 33.17, p. 138
(in legal malpractice cases in which causation is not
obvious, ‘‘expert testimony may be essential to provide
the nexus between the error and damage’’); see also
LePage v. Horne, 262 Conn. 116, 125–26, 809 A.2d 505
(2002) (in medical malpractice context, expert testi-
mony was required because it was beyond field of ordi-
nary knowledge and experience of jurors to understand
standard of care).
In the present case, from the perspective of a lay
juror, the causal link between the plaintiff’s allegations
of negligence and the plaintiff’s criminal convictions is
far from obvious. Specifically, even if the defendant’s
omissions or conduct were shown to be negligent, it
would be entirely unclear to a jury that those omissions
or conduct, rather than the plaintiff’s commission of
the charged crimes and the resulting evidence of her
guilt, were the proximate cause of the plaintiff’s convic-
tions. Stated otherwise, even if the defendant had done
everything that the plaintiff now claims she should have
done differently over the course of the plaintiff’s crimi-
nal trial, the state’s case might have been strong enough
that the defendant still would have been convicted.
Without any specialized knowledge of criminal law and
procedure, specifically, the statutes proscribing the
charged offenses and the rules governing the undertak-
ing of a criminal trial, the jurors would be unable to
determine, in light of the case the state presented,
whether the alternative strategies suggested by the
plaintiff had a viable chance of succeeding.15 Accord-
ingly, expert testimony was necessary for the plaintiff
to show that the actions she alleges the defendant
should have taken were likely to have led to the plain-
tiff’s acquittal. Cf. Wayt v. Miller, 64 Fed. Appx. 697,
700 (10th Cir. 2003) (in legal malpractice action, expert
testimony was required to establish whether challenge
to asset forfeiture, if timely filed, would have been suc-
cessful); Carbone v. Tierney, supra, 151 N.H. 529
(expert testimony was required to prove that dismissal
of state and federal actions, due to attorney’s ‘‘egre-
gious’’ conduct, harmed plaintiff, because plaintiff
needed to show that he otherwise would have prevailed
in those actions).
Notably, many of the plaintiff’s allegations of negli-
gence concern matters of pretrial preparation and trial
strategy. It is true that ‘‘[l]egal malpractice may include
an attorney’s failure to exercise ordinary care in prepar-
ing, managing, and presenting litigation. . . . But
[d]ecisions of which witnesses to call, what testimony
to obtain or when to cross-examine almost invariably
are matters of judgment. . . . As such, the wisdom and
consequences of these kinds of tactical choices made
during litigation are generally matters beyond the ken
of most jurors. And when the causal link is beyond
the jury’s common understanding, expert testimony
is necessary.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Alexander v. Tur-
tur & Associates, Inc., 146 S.W.3d 113, 119–20 (Tex.
2004); see also Shields v. Campbell, 277 Or. 71, 79, 559
P.2d 1275 (1977) (expert testimony was required to
establish whether attorney’s introduction of documen-
tary evidence in underlying case would have resulted
in trial outcome more favorable to plaintiff).
As a final matter, we reject the plaintiff’s claim that
the only way to prove causation in this malpractice
action was to call as witnesses the jurors from her
criminal trial, and elicit from them testimony regarding
how they would have voted if the case had been
defended differently.16 When establishing causation in
a legal malpractice action through the case within a
case method, ‘‘the objective . . . is to determine what
the result should have been (an objective standard) not
what the result would have been by a particular judge or
jury (a subjective standard).’’17 (Emphasis in original.) 5
R. Mallen & J. Smith, supra, § 33.8, p. 70. Accordingly,
the introduction of testimony by the fact finder from
the underlying proceedings is improper, as it would
inject an impermissible subjective causation standard
into the malpractice action. Cf. Hirschberger v. Sil-
verman, 80 Ohio App. 3d 532, 540–41, 609 N.E.2d 1301
(1992) (court precluded testimony of judges regarding
how plaintiff’s case would have been different in
absence of attorney’s alleged malpractice).
In complex legal malpractice matters, ‘‘expert testi-
mony is necessary to keep the jury from speculating
on how the client’s loss or injury is directly linked to
that which he claims was the breach of duty by the
attorney.’’ (Emphasis in original.) Van Sommeren v.
Gibson, 991 N.E.2d 1199, 1208 (Ohio App. 2013). With-
out such testimony to indicate how the result of the
underlying proceeding should have differed if not for
the alleged negligence, ‘‘the [fact finder] would be com-
pelled to speculate as to proximate causation . . . .’’
Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 940
(Me. 1999). We conclude that the present case, which
raised the complex question of how the result of a
criminal trial might have differed if defense counsel
had done a number of things differently, required an
expert to prevent the jury from speculating as to the
answer to that question.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers
was not present at oral argument, she has read the briefs and appendices,
and has listened to a recording of oral argument prior to participating in
this decision.
1
We granted the plaintiff’s petition for certification to appeal from the
judgment of the Appellate Court, limited to the following question: ‘‘Did the
Appellate Court properly affirm the trial court’s grant of summary judgment
in favor of the defendant on the basis that the plaintiff’s failure to disclose
an expert witness in support of her claims was a material fact to an essential
element of her cause of action?’’ Bozelko v. Papastavros, 317 Conn. 909,
115 A.3d 1105 (2015).
2
The plaintiff also contends that (1) the defendant’s counsel improperly
interfered with her attempt to secure an expert witness, entitling her to
equitable relief from either this court or the trial court, (2) requiring an
indigent party to retain an expert for a legal malpractice claim constitutes
a denial of due process, (3) the defendant or the defendant’s expert witness
could have served as the plaintiff’s expert witness, (4) the defendant engaged
in discovery abuses, (5) the trial court should have allowed discovery to
proceed before ruling on the defendant’s summary judgment motion, and (6)
her allegations regarding misrepresentation did not require expert testimony.
We decline to reach each of these claims for one or more of the following
reasons. The claim is beyond the scope of the certified question; see, e.g.,
Swenson v. Sawoska, 215 Conn. 148, 151 n.3, 575 A.2d 206 (1990); the claim
was not raised in or decided by the Appellate Court; see, e.g., State v. Fauci,
282 Conn. 23, 26 n.1, 917 A.2d 978 (2007); the record is inadequate to review
the claim; see, e.g., Deutsche Bank National Trust Co. v. Bertrand, 140
Conn. App. 646, 654, 59 A.3d 864, cert. dismissed, 309 Conn. 905, 68 A.3d
661 (2013); and/or the claim has been inadequately briefed. See, e.g., Stafford
v. Roadway, 312 Conn. 184, 188 n.4, 93 A.3d 1058 (2014).
3
The plaintiff was convicted of offenses charged in four separate case
files. State v. Bozelko, 119 Conn. App. 483, 485, 987 A.2d 1102, cert. denied,
295 Conn. 916, 990 A.2d 867 (2010). In the first case, the plaintiff was
convicted of attempt to commit larceny in the first degree, identity theft in
the first degree, attempt to commit illegal use of a credit card, and forgery
in the third degree. Id., 485–86. In the second case, the plaintiff was convicted
of larceny in the third degree, identity theft in the third degree, illegal use
of a credit card, and forgery in the third degree. Id., 486. In the third case,
the plaintiff was convicted of attempt to commit larceny in the fifth degree,
attempt to commit illegal use of a credit card, and identity theft in the third
degree. Id. In the fourth case, the plaintiff was convicted of larceny in the
fifth degree, illegal use of a credit card, and identity theft in the third
degree. Id.
4
The plaintiff also alleged negligent infliction of emotional distress but
subsequently withdrew that claim.
5
For the most part, these allegations were made in the context of both
her legal malpractice and breach of fiduciary duty claims.
6
Practice Book § 13-4 (a) provides in relevant part: ‘‘A party shall disclose
each person who may be called by that party to testify as an expert witness
at trial, and all documents that may be offered in evidence in lieu of such
expert testimony, in accordance with this section. . . .’’
Pursuant to Practice Book § 13-4 (h), a court may impose sanctions on
a party for its failure to comply with the disclosure requirement, including
the sanction of precluding the introduction of expert testimony at trial.
7
The court determined that expert testimony also was necessary to prove
the plaintiff’s claim of breach of fiduciary duty.
8
The plaintiff also raised claims concerning the sufficiency of the affidavit
submitted by the defendant in support of her summary judgment motion,
the timing of the trial court’s resolution of the parties’ discovery disputes
and the constitutionality of requiring indigent civil litigants to retain expert
witnesses. Bozelko v. Papastavros, 156 Conn. App. 124, 133, 134, 137, 111
A.3d 966 (2015). The Appellate Court rejected the affidavit and discovery
claims; id., 134, 136–37; and declined to review the constitutional claim. Id.,
137–38. Although the plaintiff has pursued these claims on appeal to this
court, they are not proper subjects of this appeal. See footnote 2 of this
opinion.
9
Because the plaintiff’s failure to produce an expert to testify as to causa-
tion was fatal to her claims, we need not address her argument as to the
applicability of the gross negligence exception, which, when applicable,
renders expert testimony unnecessary to prove a breach of the standard of
care. See Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 119 (Tex.
2004) (‘‘[b]reach of the standard of care and causation are separate inquiries
. . . and an abundance of evidence as to one cannot substitute for a defi-
ciency of evidence as to the other’’).
10
Similarly, a plaintiff alleging a breach of fiduciary duty must show that
any damages sustained were proximately caused by the fiduciary’s breach
of his or her fiduciary duty. See, e.g., Rossman v. Morasco, 115 Conn. App.
234, 243, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009);
see also T. Merritt, 16 Connecticut Practice Series: Elements of an Action
(2015–2016 Ed.) § 8:1, p. 670.
11
‘‘There is an exception to this rule, however, [when] there is such an
obvious and gross want of care and skill that neglect is clear even to a lay
person.’’ (Internal quotation marks omitted.) Grimm v. Fox, supra, 303
Conn. 330. This exception ‘‘is limited to situations in which the . . . attorney
essentially has done nothing whatsoever to represent his or her client’s
interests . . . .’’ (Internal quotation marks omitted.) Id.
12
See, e.g., Sommers v. McKinney, 287 N.J. Super. 1, 14, 670 A.2d 99 (App.
Div. 1996) (expert testimony was unnecessary to establish causal connection
between attorney’s charge for services not performed and plaintiff’s receipt
of lesser proceeds from settlement check); but cf. Meyer v. Mulligan, 889
P.2d 509, 516 (Wyo. 1995) (expert testimony was required to prove that
drafting corporate and transactional documents differently would have pre-
vented subsequent dispute and damages resulting therefrom).
13
Although this court apparently never has addressed the issue squarely;
but see Grimm v. Fox, supra, 303 Conn. 352 (Palmer, J., concurring) (to
prevail on legal malpractice claim, ‘‘the plaintiff would be required to prove
not only that the defendants were negligent in their handling of [the plain-
tiff’s] appeal, but also that [the] appeal would have been successful if the
defendants had represented him competently’’); the Appellate Court has
held on numerous occasions that expert testimony is necessary to establish
causation in legal malpractice cases. See, e.g., Law Offices of Robert K.
Walsh, LLC v. Natarajan, 124 Conn. App. 860, 863–64, 7 A.3d 391 (2010);
Byrne v. Grasso, 118 Conn. App. 444, 451–52, 985 A.2d 1064 (2009), cert.
denied, 294 Conn. 934, 987 A.2d 1028 (2010); Vona v. Lerner, 72 Conn. App.
179, 189, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138
(2003); Solomon v. Levett, 30 Conn. App. 125, 128, 618 A.2d 1389 (1993);
Somma v. Gracey, 15 Conn. App. 371, 374–75, 544 A.2d 668 (1988). This
requirement initially was imported, without discussion, from the medical
malpractice context. See Campbell v. Pommier, 5 Conn. App. 29, 32, 496
A.2d 975 (1985) (citing medical malpractice cases).
14
Because this case was claimed for a jury trial, we leave for another day
the question of whether a different rule should apply in a trial to the court.
15
It bears emphasizing that the plaintiff stands convicted, beyond a reason-
able doubt, of fourteen offenses and that her previous direct appeal and
habeas action both were unsuccessful. The decisions disposing of these
actions indicate that the evidence against the plaintiff was compelling. See
State v. Bozelko, supra, 119 Conn. App. 487–89 (discussing facts underlying
defendant’s criminal convictions); Bozelko v. Warden, Superior Court, judi-
cial district of Tolland, Docket No. TSR-CV-10-4003804-S (August 13, 2013)
(same), appeal dismissed sub nom. Bozelko v. Commissioner of Correction,
156 Conn. App. 901, 110 A.3d 548, cert. denied, 317 Conn. 904, 114 A.3d
1219 (2015). The plaintiff’s allegations in support of her claims of ineffective
assistance in her unsuccessful habeas petition are similar to the allegations
made in the present case. Although the habeas court concluded that the
defendant had not performed deficiently, it also concluded that, ‘‘perhaps
more significantly,’’ the plaintiff had not shown prejudice, ‘‘even if [the
defendant] had represented the [plaintiff] as she now claims she should
have.’’ Bozelko v. Warden, supra. In particular, the habeas court noted the
plaintiff’s failure to establish what favorable testimony different cross-exami-
nation would have yielded, or to establish that certain unfiled motions were
warranted and could have succeeded. Id. It also emphasized ‘‘the devastating
quality of the evidence stacked against the [plaintiff]’’ and ‘‘[t]he copious
nature of that incriminating evidence,’’ and concluded that ‘‘[t]he strength
of the prosecution led, inexorably, to the [plaintiff’s] convictions.’’ Id. In
summarizing, the habeas court concluded that ‘‘[t]he allegations against [the
defendant were] trivial and inconsequential in light of the crushing evidence
of [the plaintiff’s] guilt.’’ Id. Given the apparent strength of the state’s evi-
dence, expert testimony was necessary to show how a different result than
a conviction reasonably could have been obtained. See, e.g., Vort v. Hol-
lander, 257 N.J. Super. 56, 61, 607 A.2d 1339 (App. Div.) (observing that, in
light of trial court’s assessment of plaintiff’s underlying action as nonmerito-
rious, expert testimony ‘‘[c]learly’’ was required to prove causation in subse-
quent legal malpractice action), cert. denied, 130 N.J. 599, 617 A.2d 1221
(1992).
16
In light of the fact that the plaintiff was convicted, following her plea
under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970), of attempting to tamper with several jurors in the criminal matters
underlying this malpractice action; see Bozelko v. Commissioner of Correc-
tion, 162 Conn. App. 716, 718–20, 133 A.3d 185, cert. denied, 320 Conn. 926,
133 A.3d 458 (2016); her argument is, to say the least, questionable.
17
‘‘Under a subjective standard . . . the arbiter from the first [action]
would be asked to testify concerning the effect, if any, of the attorney’s
actions on the outcome of the underlying case. Under an objective standard,
the trier in the malpractice [action] views the first [action] from the stand-
point of what a reasonable judge or jury would have decided, but for the
attorney’s negligence.’’ Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300
(App. 1986).