How much of the case materials should the expert review?

In Daubert hearings one of the key elements is whether the expert really reviewed sufficient materials to be able to form a reasonable opinion (in the judge's estimation).  It therefore is important that any lawyer asking an expert to testify in a legal malpractice case furnish "sufficient" materials.  On the other side of the conference, the legal malpractice expert must warn the retaining attorney when the expert sees "holes" in what has been furnished and ask the retaining attorney to furnish the missing materials.

Even states which do not use the Daubert tests are also requiring more "foundation" for the expert's opinion.  Here is an example from Texas.  Bell v. Phillips, No. 14-00-01189-CV (Tex.App. Dist.14 04/18/2002) says, in part:

[48] [Legal malpractice expert witness Gladney testified that Phillips breached the standard of care because "a reasonable and prudent attorney would have filed a new and separate lawsuit on Wanda's behalf as soon as she obtained standing to sue." Gladney stated that Phillips fell below this standard of care by waiting so long to pursue her claim that he had to file a bill of review on her behalf instead of a new lawsuit (when the claim in intervention was not successful), * * * *

[50] * * * *, Gladney's expert opinions are unsupported. Gladney testified that he had read the underlying court of appeals opinion, some interrogatories, and the contingency fee agreement between Phillips and Wanda, and that he relied primarily on information he had received from Wanda. Gladney did not review any of the pleadings, correspondence, deposition transcripts, motions, or any expert reports in the underlying litigation nor did he meet with Phillips.  Gladney performed no independent investigation as to whether Wanda even had a valid claim against BMC. . . . . .

[51] An expert may rely on inadmissible facts or data in forming an opinion if they are of the type reasonably relied on by other experts to make opinions or draw inferences. TEX. R. CIV. P. 703; Baylor Medical Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 76 (Tex. App.--Texarkana 1992, writ denied). Therefore, Gladney's reliance upon hearsay does not necessarily render his opinions incompetent if hearsay is the type of evidence relied upon by attorneys in forming opinions or inferences. See General Electric Co. v. Kunze, 747 S.W.2d 826, 831-32 (Tex. App.--Waco 1987, writ denied). An expert witness testifying on the subject of the proper standard of legal care and alleged legal malpractice would not rely solely on the factual assertions of an interested party in forming an opinion. See Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex. App.--San Antonio 1999, pet. denied.). Because Gladney relied primarily on Wanda's factual assertions without further exploration of the evidentiary and procedural background of the case, we conclude his testimony failed to raise any fact issues regarding the specific instances of malpractice alleged.  (Emphasis supplied.)