## Facts

- Larry Vandermay owned and operated VanWest Oil Company, with Paul Clayton serving for years as Vandermay’s corporate and personal attorney.
- Vandermay agreed to sell the business; environmental testing at one site revealed petroleum contamination.
- The buyer’s offer required Vandermay to bear environmental responsibility; Vandermay agreed to cap his exposure at $5,000 and instructed Clayton to draft a closing agreement reflecting that cap.
- Clayton prepared a document with the $5,000 cap, but at the closing the buyer refused to sign and presented a substitute agreement.
- The substitute agreement materially expanded VanWest’s (and effectively Vandermay’s) potential liability for cleanup costs above $5,000 under specified state and federal environmental laws.
- Vandermay testified that he looked to Clayton for guidance at closing and that Clayton nodded, indicating it was acceptable to sign; Vandermay signed and completed the sale.
- Subsequent investigation revealed greater contamination; Vandermay later settled related litigation and paid more than $585,000.
- Vandermay, his wife, and an affiliated entity sued Clayton for legal malpractice, alleging negligent failure to advise about the meaning and risks of the substitute environmental-liability provision.

## Issues

1. Whether the trial court properly directed a verdict for the defendant attorney on the ground that, without expert testimony, the jury could not find negligence in the attorney’s closing advice regarding the substitute agreement.

## Decision

- The Oregon Supreme Court affirmed the Court of Appeals and reversed the trial court’s directed verdict.
- The court held that expert testimony was not required on these facts because a jury could evaluate, using common knowledge, whether the attorney negligently failed to communicate the significance of a last-minute document that materially increased the client’s risk.
- The case was remanded for further proceedings.

## Legal Principles

- Legal malpractice ordinarily requires expert testimony to establish the applicable professional standard of care and a deviation from that standard.
- Expert testimony is unnecessary when the alleged lack of care is so apparent that lay jurors can recognize it without specialized assistance.
- On review of a directed verdict, the evidence is viewed in the light most favorable to the nonmoving party, and the question is whether a jury could reasonably find negligence on the record presented.
- A jury may assess, without expert help, whether a reasonable lawyer would have warned a client or advised delaying or renegotiating when a closing document materially changes agreed risk allocation at the last moment.

## Conclusion

The court held that the malpractice claim could go to the jury without expert testimony because jurors could reasonably decide whether the attorney breached ordinary professional care by effectively approving a last-minute agreement that eliminated the client’s negotiated liability cap without clearly explaining the resulting increased exposure.


Vandermay v. Clayton, 328 Or. 646 (1999)