August 25, 2000, DEFENDANT'S [Faulkner] MEMORANDUM IN OPPOSITION TO PLAINTIFF'S REQUEST FOR APPOINTMENT OF A LEGAL EXPERT. Total of five (5) pages. Please note that the document is not dated and I did not receive a certificate of service with this document.
JOHN GREGORY LAMBROS
Plaintiff
vs.
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
and
JOHN & JANE DOE
Defendants
DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S REQUEST FOR
APPOINTMENT OF A LEGAL EXPERT
This court has requested
that defendants respond to plaintiffs motion for appointment of a
legal expert in the above-referenced matter. Defendants urge the
court to deny the plaintiffs request.
DISCUSSION
I . A pro se defendant in a civil case has no right to appointment
of an expert where the plaintiff's claim is for damages.
Plaintiff has offered no legal basis, under any rule, statute or
case law, for court appointment of an expert. Indeed, there is no
authority for this court to appoint a lawyer to serve as an expert
for the plaintiff, even though the plaintiff is
End of page 1
acting to some extent pro se se'. In the instant lawsuit, the
plaintiff is seeking damages in an amount in excess of 100 trillion
dollars based on claims of malpractice committed by his
court-appointed defense counsel and alleged racketeering between
defense counsel and members of counsel's law office. See paragraphs
97 - 101, Amended Complaint.
In support of their motion for summary judgment, the defendants have
submitted an affidavit of an expert, Joseph S. Friedberg. In a
malpractice claim, whether legal or medical, defendants commonly seek
summary judgment based upon the opinion of an expert that the
defendant's actions did not fall below professional standards. See
e.g., Jones v. Wike, 654 F.2d 1129 (5th Cir. 1981). The
failure of a party to produce expert testimony to contradict the
opinion of the moving party's expert is frequently a basis for
granting summary judgment. See 4 Mallen and Smith, Legal
Malpractice (4th ed. 1996) § 32.23 (and cases cited
therein); Fletcher v. Zellmer, 909 F.Supp 678, 682 (D. Minn.
1995) aff d 105 F.3d 662 (8th Cir. 1997).
The plaintiff in this case, who has been actively involved in
litigation since his incarceration, can not reasonably claim that he
was taken by surprise by the
Footnote 1
Plaintiff sought and
was granted appointment of counsel for purposes of responding to
defendants' motion for dismissal or summary judgment. Counsel was
appointed pursuant to 28 U.S.C. § 1915(e)(1). See Order filed
January 26, 2000. Appointed counsel is serving plaintiff on a. pro
bono basis pursuant to the statute. See Feliciano v.
DuBois, 846 F.Supp 1033, 1040 (D. Mass. 1995) (district court has
no authority to commit any financial resources to compensate
appointed counsel).
End of page 2
submission of an affidavit by an expert. Some courts have suggested
that pro Le litigants be advised that in response to a summary
judgment motions, they should be expected to produce affidavits.
See Anderson v. Angelon , 86 F-3d 932, 935 (9th Cir. 1996);
Hall v. Bellmon, 93 5 F.2d 1106, 1111 (10th Cir. 199 1). In
this case, however, the court granted plaintiffs request for
appointment of counsel. See Order filed January 26, 2000. The court
appointed highly experienced legal counsel to serve as plaintiff's
advocate. Appointed counsel is presumed to have apprised the
plaintiff of the necessity for opposing affidavit in response to a
summary judgment motion. Now it is clear that plaintiff has no legal
support for his claims.
According to the Tenth Circuit Court in Hall, supr , the
district court should review a pro se litigant's pleadings
less stringently, but the court is not to assume to role of the
advocate for the plaintiff. Hall, 93 5 F.2d at 110. The
plaintiff here is in essence requesting that this Court assist him,
as an advocate, by appointing him an expert to support his claims.
This is not the role of the court.
Admittedly, in a criminal proceeding , where an indigent
defendant needs an expert for his defense, and upon proper showing of
need, the trial court must provide the defendant with funds for an
expert in order to protect the indigent defendant's constitutional
rights to due process and a fair trial. See U.S. Const. amends. VI,
XIV; Ake v. Oklahoma, 470 U.S. 68, 74 (1985). Where, however,
the plaintiff is seeking monetary damages, the court has no authority
to assist with the cost, or even in seeking a volunteer, to serve the
plaintiff. See Wright v. United
End of page
States, 948
F.Supp. 61 (M.D. Fla. 1996) (plaintiff proceeding in forma pauperis
is
responsible for paying costs of any depositions he conducts);
accord Tajeddini v. Gluc 942 F.Supp. 772, 782 (D. Conn.
1996).
In cases where the plaintiff seeks a monetary award, he must secure
his own experts and expect to pay them in advance or from the
proceeds of any award he may obtain in the future. The rules of civil
procedure make no exception for situations such as this where the
plaintiff is indigent. Presumably an expert who strongly supports a
claimant's malpractice claim would be willing to await payment for
services at such time as the plaintiff expects to prevail.
There is no authority for this court to serve as an advocate for the
plaintiff and assist the plaintiff in an effort to survive
defendant's summary judgment motion. See Anderson v. Liberty
Lobby, Inc. 417 U.S. 242, 249 (1986) (to withstand motion for
summary judgment supported by affidavits, non-moving party cannot
rely solely on his allegations without significant probative evidence
to support the claim); accord Belmore v. City Pages, Inc. 880
F.Supp. 673, 676 (D. Minn. 1995).
2. Plaintiff has not committed to accepting the opinion of a court
appointed expert.
Plaintiff is seeking appointment of an expert in hopes of
obtaining an
opinion contrary to that of Mr. Friedberg. Indeed, the plaintiffs
request for
appointment of an expert is for "a criminal defense attorney to
review the history of
Plaintiff's criminal case and to form an opinion about the requisite
standard of care for
End of page 4
an attorney under the circumstances." See Plaintiff's Motion for
Appointment of A Legal Expert. Remarkably, the plaintiff has not even
averred that he would agree to be bound by the opinion of a
court-appointed expert. Even if he so agreed, it takes little
imagination to foresee a lawsuit against the member or representative
of the judiciary who is designated to appoint an expert for the
plaintiff if the expert would not concur with the plaintiffs theories
of malpractice.
Conclusion
Plaintiffs request for appointment of an expert should be
denied.
RESPECTFULLY SUBMITTED,
Signed: Deborah Ellis
Attorney Lic No. 14616X
Donna Rae Johnson
Attorney Lic. No. 50945
Six West Fifth Street
Suite 700
Saint Paul, MN 55102
End of page 5
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
USATHANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.