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
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
JOHN & JANE DOE
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.
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
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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
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
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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
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F.Supp. 61 (M.D. Fla. 1996) (plaintiff proceeding in forma pauperis
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
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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.
Plaintiffs request for appointment of an expert should be denied.
Signed: Deborah Ellis
Attorney Lic No. 14616X
Donna Rae Johnson
Attorney Lic. No. 50945
Six West Fifth Street
Saint Paul, MN 55102
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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
THANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.