## Facts

- Stanley W. Wolski, Jr. claimed ownership interests in 119 acres of Nebraska farmland that had been deeded to his sister, Rosemary Parriott, “as Trustee,” under a deed that did not identify any trust terms or beneficiaries.
- A later “Amendments of Trust Agreement” described Wolski as disabled, provided him lifetime net income from the land, and left the remainder to Parriott’s children.
- In 2000, Wolski retained attorney Josephine Walsh Wandel to challenge any trust arrangement, set aside the trustee deed, and obtain fee simple title and an accounting.
- Due to concerns about Wolski’s capacity, a guardian ad litem was appointed; the guardian reviewed records, met with Wolski, and consulted with counsel.
- The underlying property case settled: Wolski received a life estate, with the remainder to Parriott and her heirs; the guardian ad litem recommended approval and the court approved the settlement and dismissed the case.
- Wolski later failed to set aside the settlement and sued Wandel for legal malpractice, alleging negligent settlement advice and failure to provide the guardian ad litem certain documents and legal research.
- Wandel supported summary judgment with expert evidence that her representation met the applicable standard of care.
- Wolski relied on an expert who criticized Wandel’s tactics and opined the case should have been tried and could have been won, but did not state that Wandel’s conduct fell below the professional standard of care; the guardian ad litem testified additional materials would not have changed his settlement recommendation.

## Issues

1. Whether the record presented a genuine issue of material fact that the attorney breached the professional standard of care in advising settlement rather than proceeding to trial.
2. Whether a genuine issue existed that the attorney breached the standard of care by not providing additional information or legal research to the guardian ad litem in connection with the settlement.
3. Whether, on summary judgment, the plaintiff’s evidence—particularly expert testimony—was legally sufficient to show breach of the standard of care.

## Decision

- The Nebraska Supreme Court affirmed summary judgment for the defendant-attorney.
- The court held that the defendant made a prima facie showing of compliance with the standard of care through expert testimony.
- The court held that the plaintiff failed to produce competent expert testimony establishing that the attorney’s conduct fell below the applicable standard of care.
- The court concluded that disagreement with tactical choices and after-the-fact opinions that a case “should have been tried” did not, without standard-of-care testimony, create a triable malpractice claim.

## Legal Principles

- In legal malpractice actions, expert testimony is ordinarily required to establish the applicable standard of care and breach because such matters are generally beyond lay knowledge.
- Once a defendant makes a prima facie showing on summary judgment (including by expert evidence) that the standard of care was met, the plaintiff must present competent contrary evidence showing a genuine dispute of material fact.
- An expert’s critique of strategy or opinion that a different course might have produced a better outcome is insufficient absent an opinion that counsel’s conduct fell below the professional standard of care.
- Differences in professional opinion, standing alone, do not necessarily constitute negligence.
- Evidence that a guardian ad litem independently evaluated the matter and would not have changed a settlement recommendation despite additional materials may undercut a malpractice theory premised on information allegedly withheld from the guardian.

## Conclusion

The court upheld dismissal of the malpractice claim because the plaintiff did not produce expert evidence that the attorney’s settlement-related representation was below the standard of care, and the record showed the guardian ad litem independently supported the settlement regardless of the additional materials the plaintiff claimed should have been provided.


Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (Neb. 2008)