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CHANDRA A. BOZELKO v. ANGELICA

N. PAPASTAVROS

(SC 19495)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.*

Argued May 4—officially released September 27, 2016

Chandra A. Bozelko, self-represented, the appellant

(plaintiff).

Daniel J. Krisch, with whom, on the brief, were

Thomas P. Lambert and Brian E. Tims, for the appellee (defendant).
Opinion

ZARELLA, J. This case raises the question of whether

a plaintiff’s failure to produce expert testimony on the

issue of causation is fatal to her claims of legal malpractice and breach of fiduciary duty by an attorney. The

plaintiff, Chandra A. Bozelko, appeals from the judgment of the Appellate Court, which affirmed the trial

court’s judgment in favor of the defendant, Angelica N.

Papastavros. The trial court granted the defendant’s

motion for summary judgment after precluding the

plaintiff from presenting expert testimony due to her

failure to disclose an expert witness by a date previously

ordered. The plaintiff contends, inter alia, that summary

judgment was improper because expert testimony was

unnecessary to prove her claims of legal malpractice

and breach of fiduciary duty.1 We disagree and, accordingly, affirm the judgment of the Appellate Court.2

The following facts and procedural history are relevant to this appeal. The defendant served as the plaintiff’s defense counsel in a 2007 criminal jury trial.

Following that trial, the plaintiff was convicted of fourteen offenses3 and acquitted of eight others, and she

received a total effective sentence often years imprisonment, execution suspended after five years, and four

years of probation. Her convictions were upheld on

direct appeal; State v. Bozelko, 119 Conn. App. 483, 510,

987 A.2d 1102, cert. denied, 295 Conn. 916, 990 A.2d

867 (2010); and she thereafter unsuccessfully sought

habeas relief on the basis of ineffective assistance of

counsel.

In 2007, while awaiting sentencing, the plaintiff filed

the present action against the defendant, alleging legal

malpractice and breach of fiduciary duty in connection

with the defendant’s representation of the plaintiff in

the criminal proceedings.4 The plaintiff’s operative complaint sets forth a number of specific allegations, including the defendant’s alleged delay in instituting a written

fee agreement, misrepresentation of the length of her

legal career and criminal trial experience, failure to

familiarize herself adequately with the facts of the case

and the relevant law and procedure, failure to interview

potential witnesses, failure to file certain motions, failure to deliver a coherent closing argument, failure to

prepare for trial, failure to maintain attorney-client confidentiality, failure to return the plaintiff’s file upon

request, and speaking with the press about confidential

matters without the plaintiff’s authorization.5 The plaintiff claimed that these alleged shortcomings had caused

her to suffer damages, which resulted from her criminal

convictions and incarceration.

On March 28, 2013, when the case had been pending

for about six years, the defendant sought leave to file

a motion for summary judgment, which the trial court

denied in light of the fact that trial was scheduled to
commence on June 27, 2013. The court ordered, however, that the plaintiff disclose an expert witness no

less than forty-five days prior to trial, and it warned

that her failure to do so would result in the preclusion

of expert testimony.6 The court’s order also indicated

that the defendant could renew her motion for summary

judgment in the event that the plaintiff failed to disclose

an expert.

On May 17, 2013, the plaintiff filed an expert witness

disclosure identifying her former habeas counsel as her

expert witness. The defendant moved to preclude that

individual from testifying due to various inadequacies

in the disclosure, and she also renewed her motion for

summary judgment. At a June 11, 2013 hearing, the

plaintiff’s former habeas counsel appeared and testified

that he had not been retained as an expert and had no

expert opinion to offer. The plaintiff failed to identify

any other expert witness. Thereafter, the court issued

an order precluding the plaintiff from offering expert

testimony.

The trial court deferred any decision with respect to

the defendant’s summary judgment motion and permitted the plaintiff to reargue the preclusion order on the

scheduled trial date. At that time, the plaintiff raised

numerous arguments, including that expert testimony

was unnecessary in the present case because her claims

constituted allegations of gross negligence, a recognized exception to the general rule requiring expert

testimony to establish the standard of care in a professional negligence action. See, e.g., Grimm v. Fox, 303

Conn. 322, 330, 33 A.3d 205 (2012). The trial court, after

reviewing the allegations of the plaintiff’s complaint,

disagreed with the plaintiff’s characterization and concluded instead that expert testimony would be necessary to prove her allegations of negligence. The court

also concluded that an expert would be necessary to

establish causation, namely, ‘‘that any of the things the

defendant allegedly did wrong (whether [the result of]

gross negligence or not) resulted in her conviction or

any of the many harms [the plaintiff] alleges. Nor does

the plaintiff have an expert to opine that different conduct of the defendant would have resulted in a different

outcome . . . .’’7 Because the plaintiff lacked an

expert, the trial court granted the defendant’s motion

for summary judgment and rendered judgment thereon

for the defendant.

The plaintiff appealed to the Appellate Court from

the trial court’s judgment, claiming, inter alia, that the

trial court incorrectly had concluded that expert testimony was necessary to prove her allegations.8 See

Bozelko v. Papastavros, 156 Conn. App. 124, 126, 111

A.3d 966 (2015). The Appellate Court rejected that

claim; see id., 132–33; and affirmed the trial court’s

judgment. Id. 138. This appeal followed.

The plaintiff argues that the Appellate Court incor-
rectly concluded that her claims could not have been

proven without expert testimony. She contends that

an expert was unnecessary to establish the applicable

standard of care because her allegations amounted to

claims of gross negligence. The plaintiff also claims that

an expert was unnecessary to prove causation because

the only way to establish that the defendant’s alleged

conduct or omissions had resulted in the plaintiff’s criminal convictions was through the introduction of testimony from the jurors in her criminal trial. According

to the plaintiff, that testimony would have shown that,

if the purported deficiencies in the defendant’s performance had not existed, the jurors would not have found

the plaintiff guilty of the offenses of which she was

convicted. Even if we assume, without deciding, that

the plaintiff raised allegations of gross negligence, we

nevertheless conclude that an expert witness was

required to prove that the defendant’s alleged conduct

and omissions, rather than the plaintiff’s guilt of the

crimes charged, were the cause of the plaintiff’s convictions.9 Accordingly, the trial court properly granted the

defendant’s motion for summary judgment.

We begin with general principles and the standard of

review. ‘‘Practice Book § 17-49 provides that summary

judgment shall be rendered forthwith if the pleadings,

affidavits and any other proof submitted show thatthere

is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

In deciding a motion for summary judgment, the trial

court must view the evidence in the light most favorable

to the nonmoving party. . . . The party moving for

summary judgment has the burden of showing the

absence of any genuine issue of material fact and that

the party is, therefore, entitled to judgment as a matter

of law. . . . Our review of the trial court’s decision to

grant the defendant’s motion for summary judgment is

plenary.’’ (Internal quotation marks omitted.) Arras v.

Regional School District No. 14, 319 Conn. 245, 255,

125 A.3d 172 (2015). Summary judgment in favor of a

defendant is proper when expert testimony is necessary

to prove an essential element of the plaintiff’s case and

the plaintiff is unable to produce an expert witness to

provide such testimony. See, e.g., Grimm v. Fox, supra,

303 Conn. 330; see also Boone v. William W. Backus

Hospital, 272 Conn. 551, 574–75, 864 A.2d 1 (2005).

‘‘Malpractice is commonly defined as the failure of

one rendering professional services to exercise that

degree of skill and learning commonly applied under

all the circumstances in the community by the average

prudent reputable member of the profession with the

result of injury, loss, or damage to the recipient of

those services . . . .’’ (Emphasis added; internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C.

v. Beckett, 269 Conn. 613, 649, 850 A.2d 145 (2004).

Generally, a plaintiff alleging legal malpractice must

prove all of the following elements: ‘‘(1) the existence
of an attorney-client relationship; (2) the attorney’s

wrongful act or omission; (3) causation; and (4) damages.’’10 (Emphasis added; internal quotation marks

omitted.) Grimm v. Fox, supra, 303 Conn. 329.

‘‘The essential element of causation has two components. The first component, causation in fact, requires

us to determine whetherthe injury would have occurred

but for the defendant’s conduct. . . . The second component, proximate causation, requires us to determine

whether the defendant’s conduct is a substantial factor

in bringing about the plaintiff’s injuries. . . . That is,

there must be an unbroken sequence of events that tied

[the plaintiff’s] injuries to the [defendant’s conduct].

. . . This causal connection must be based [on] more

than conjecture and surmise. . . . [N]o matter how

negligent a party may have been, if his negligent act

bears no [demonstrable] relation to the injury, it is not

actionable . . . .’’ (Citations omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809,

833–34, 116 A.3d 1195 (2015).

‘‘The existence of the proximate cause of an injury

is determined by looking from the injury to the negligent

act complained of forthe necessary causal connection.’’

(Internal quotation marks omitted.) Grayson v. Wofsey,

Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646

A.2d 195 (1994). In legal malpractice actions arising

from prior litigation, ‘‘the plaintiff typically proves that

the . . . attorney’s professional negligence caused

injury to the plaintiff by presenting evidence of what

would have happened in the underlying action had the

[attorney] not been negligent. This traditional method

of presenting the merits of the underlying action is often

called the ‘case-within-a-case.’ 5 R. Mallen & J. Smith,

Legal Malpractice (5th Ed. 2000) § 33.8, [p. 69].’’ Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 775 n.9,

882 A.2d 653 (2005). More specifically, the plaintiff must

prove that, in the absence of the alleged breach of duty

by her attorney, ‘‘the plaintiff would have prevailed [in]

the underlying cause of action and would have been

entitled to judgment.’’ Haddy v. Caldwell, 403 S.W.3d

544, 546 (Tex. App. 2013), review denied, Texas

Supreme Court, Docket No. 13-0554 (September 20,

2013). To meet this burden, ‘‘the plaintiff must produce

evidence explaining the legal significance of the attorney’s failure and the impact this had on the underlying

action.’’ Id.

This court previously has explained that, as a general

matter, expert testimony is necessary in legal malpractice cases in order to establish the standard of care,

against which the attorney’s conduct should be evaluated by the jury. See, e.g., Grimm v. Fox, supra, 303

Conn. 329–30.11 We conclude that, although there will

be exceptions in obvious cases,12 expert testimony also

is a general requirement for establishing the element

of causation in legal malpractice cases.13 Because a
determination of what result should have occurred if

the attorney had not been negligent usually is beyond

the field of ordinary knowledge and experience possessed by a juror, expert testimony generally will be

necessary to provide the essential nexus between the

attorney’s error and the plaintiff’s damages.14 See, e.g.,

Kranis v. Scott, 178 F. Supp. 2d 330, 334 (E.D.N.Y. 2002)

(expert testimony on causation in legal malpractice

cases is required unless connection falls within ordinary

experience of fact finder); Allen v. Martin, 203 P.3d 546,

569 (Colo. App. 2008) (‘‘causation in a legal malpractice

action must be proved by expert testimony, unless causation is within the jury’s common understanding’’),

cert. denied, Colorado Supreme Court, Docket No.

08SC592 (March 2, 2009); Samuel v. Hepworth, Nungester & Lezamiz, Inc., 134 Idaho 84, 88–89, 996 P.2d 303

(2000) (expert testimony on causation in legal malpractice case is required when factors involved are not

within ordinary knowledge and experience of laypersons); Meyer v. Purcell, 405 S.W.3d 572, 578 (Mo. App.

2013) (‘‘[e]xpert testimony is required to prove proximate causation in [connection with] legal malpractice

claims except in a ‘clear and palpable’ case’’); Carbone

v. Tierney, 151 N.H. 521, 528, 864 A.2d 308 (2004)

(‘‘expert testimony on proximate cause is required in

[legal malpractice] cases [in which] determination of

that issue is not one that lay people would ordinarily

be competent to make’’ [internal quotation marks omitted]); 5 R. Mallen & J. Smith, supra, § 33.17, p. 138

(in legal malpractice cases in which causation is not

obvious, ‘‘expert testimony may be essential to provide

the nexus between the error and damage’’); see also

LePage v. Horne, 262 Conn. 116, 125–26, 809 A.2d 505

(2002) (in medical malpractice context, expert testimony was required because it was beyond field of ordinary knowledge and experience of jurors to understand

standard of care).

In the present case, from the perspective of a lay

juror, the causal link between the plaintiff’s allegations

of negligence and the plaintiff’s criminal convictions is

far from obvious. Specifically, even if the defendant’s

omissions or conduct were shown to be negligent, it

would be entirely unclear to a jury that those omissions

or conduct, rather than the plaintiff’s commission of

the charged crimes and the resulting evidence of her

guilt, were the proximate cause of the plaintiff’s convictions. Stated otherwise, even if the defendant had done

everything that the plaintiff now claims she should have

done differently over the course of the plaintiff’s criminal trial, the state’s case might have been strong enough

that the defendant still would have been convicted.

Without any specialized knowledge of criminal law and

procedure, specifically, the statutes proscribing the

charged offenses and the rules governing the undertaking of a criminal trial, the jurors would be unable to

determine, in light of the case the state presented,
whether the alternative strategies suggested by the

plaintiff had a viable chance of succeeding.15 Accordingly, expert testimony was necessary for the plaintiff

to show that the actions she alleges the defendant

should have taken were likely to have led to the plaintiff’s acquittal. Cf. Wayt v. Miller, 64 Fed. Appx. 697,

700 (10th Cir. 2003) (in legal malpractice action, expert

testimony was required to establish whether challenge

to asset forfeiture, if timely filed, would have been successful); Carbone v. Tierney, supra, 151 N.H. 529

(expert testimony was required to prove that dismissal

of state and federal actions, due to attorney’s ‘‘egregious’’ conduct, harmed plaintiff, because plaintiff

needed to show that he otherwise would have prevailed

in those actions).

Notably, many of the plaintiff’s allegations of negligence concern matters of pretrial preparation and trial

strategy. It is true that ‘‘[l]egal malpractice may include

an attorney’s failure to exercise ordinary care in preparing, managing, and presenting litigation. . . . But

[d]ecisions of which witnesses to call, what testimony

to obtain or when to cross-examine almost invariably

are matters of judgment. . . . As such, the wisdom and

consequences of these kinds of tactical choices made

during litigation are generally matters beyond the ken

of most jurors. And when the causal link is beyond

the jury’s common understanding, expert testimony

is necessary.’’ (Citations omitted; emphasis added;

internal quotation marks omitted.) Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 119–20 (Tex.

2004); see also Shields v. Campbell, 277 Or. 71, 79, 559

P.2d 1275 (1977) (expert testimony was required to

establish whether attorney’s introduction of documentary evidence in underlying case would have resulted

in trial outcome more favorable to plaintiff).

As a final matter, we reject the plaintiff’s claim that

the only way to prove causation in this malpractice

action was to call as witnesses the jurors from her

criminal trial, and elicit from them testimony regarding

how they would have voted if the case had been

defended differently.16 When establishing causation in

a legal malpractice action through the case within a

case method, ‘‘the objective . . . is to determine what

the result should have been (an objective standard) not

what the result would have been by a particularjudge or

jury (a subjective standard).’’17 (Emphasis in original.) 5

R. Mallen & J. Smith, supra, § 33.8, p. 70. Accordingly,

the introduction of testimony by the fact finder from

the underlying proceedings is improper, as it would

inject an impermissible subjective causation standard

into the malpractice action. Cf. Hirschberger v. Silverman, 80 Ohio App. 3d 532, 540–41, 609 N.E.2d 1301

(1992) (court precluded testimony of judges regarding

how plaintiff’s case would have been different in

absence of attorney’s alleged malpractice).
In complex legal malpractice matters, ‘‘expert testimony is necessary to keep the jury from speculating

on how the client’s loss or injury is directly linked to

that which he claims was the breach of duty by the

attorney.’’ (Emphasis in original.) Van Sommeren v.

Gibson, 991 N.E.2d 1199, 1208 (Ohio App. 2013). Without such testimony to indicate how the result of the

underlying proceeding should have differed if not for

the alleged negligence, ‘‘the [fact finder] would be compelled to speculate as to proximate causation . . . .’’

Corey v. Norman, Hanson & DeTroy, 742 A.2d 933, 940

(Me. 1999). We conclude that the present case, which

raised the complex question of how the result of a

criminal trial might have differed if defense counsel

had done a number of things differently, required an

expert to prevent the jury from speculating as to the

answer to that question.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers

was not present at oral argument, she has read the briefs and appendices,

and has listened to a recording of oral argument prior to participating in

this decision.

1 We granted the plaintiff’s petition for certification to appeal from the

judgment of the Appellate Court, limited to the following question: ‘‘Did the

Appellate Court properly affirm the trial court’s grant of summary judgment

in favor of the defendant on the basis that the plaintiff’s failure to disclose

an expert witness in support of her claims was a material fact to an essential

element of her cause of action?’’ Bozelko v. Papastavros, 317 Conn. 909,

115 A.3d 1105 (2015).

2 The plaintiff also contends that (1) the defendant’s counsel improperly

interfered with her attempt to secure an expert witness, entitling her to

equitable relief from either this court or the trial court, (2) requiring an

indigent party to retain an expert for a legal malpractice claim constitutes

a denial of due process, (3) the defendant or the defendant’s expert witness

could have served as the plaintiff’s expert witness,(4)the defendant engaged

in discovery abuses, (5) the trial court should have allowed discovery to

proceed before ruling on the defendant’s summary judgment motion, and (6)

her allegations regarding misrepresentation did notrequire experttestimony.

We decline to reach each of these claims for one or more of the following

reasons. The claim is beyond the scope of the certified question; see, e.g.,

Swenson v. Sawoska, 215 Conn. 148, 151 n.3, 575 A.2d 206 (1990); the claim

was not raised in or decided by the Appellate Court; see, e.g., State v. Fauci,

282 Conn. 23, 26 n.1, 917 A.2d 978 (2007); the record is inadequate to review

the claim; see, e.g., Deutsche Bank National Trust Co. v. Bertrand, 140

Conn. App. 646, 654, 59 A.3d 864, cert. dismissed, 309 Conn. 905, 68 A.3d

661 (2013); and/or the claim has been inadequately briefed. See, e.g., Stafford

v. Roadway, 312 Conn. 184, 188 n.4, 93 A.3d 1058 (2014).

3 The plaintiff was convicted of offenses charged in four separate case

files. State v. Bozelko, 119 Conn. App. 483, 485, 987 A.2d 1102, cert. denied,

295 Conn. 916, 990 A.2d 867 (2010). In the first case, the plaintiff was

convicted of attempt to commit larceny in the first degree, identity theft in

the first degree, attempt to commit illegal use of a credit card, and forgery

in the third degree. Id., 485–86. In the second case, the plaintiff was convicted

of larceny in the third degree, identity theft in the third degree, illegal use

of a credit card, and forgery in the third degree. Id., 486. In the third case,

the plaintiff was convicted of attempt to commit larceny in the fifth degree,

attempt to commit illegal use of a credit card, and identity theft in the third

degree. Id. In the fourth case, the plaintiff was convicted of larceny in the

fifth degree, illegal use of a credit card, and identity theft in the third

degree. Id.

4 The plaintiff also alleged negligent infliction of emotional distress but
subsequently withdrew that claim.

5 For the most part, these allegations were made in the context of both

her legal malpractice and breach of fiduciary duty claims.

6 Practice Book § 13-4 (a) provides in relevant part: ‘‘A party shall disclose

each person who may be called by that party to testify as an expert witness

at trial, and all documents that may be offered in evidence in lieu of such

expert testimony, in accordance with this section. . . .’’

Pursuant to Practice Book § 13-4 (h), a court may impose sanctions on

a party for its failure to comply with the disclosure requirement, including

the sanction of precluding the introduction of expert testimony at trial.

7 The court determined that expert testimony also was necessary to prove

the plaintiff’s claim of breach of fiduciary duty.

8 The plaintiff also raised claims concerning the sufficiency of the affidavit

submitted by the defendant in support of her summary judgment motion,

the timing of the trial court’s resolution of the parties’ discovery disputes

and the constitutionality of requiring indigent civil litigants to retain expert

witnesses. Bozelko v. Papastavros, 156 Conn. App. 124, 133, 134, 137, 111

A.3d 966 (2015). The Appellate Court rejected the affidavit and discovery

claims; id., 134, 136–37; and declined to review the constitutional claim. Id.,

137–38. Although the plaintiff has pursued these claims on appeal to this

court, they are not proper subjects of this appeal. See footnote 2 of this

opinion.

9 Because the plaintiff’s failure to produce an expert to testify as to causation was fatal to her claims, we need not address her argument as to the

applicability of the gross negligence exception, which, when applicable,

renders expert testimony unnecessary to prove a breach of the standard of

care. See Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 119 (Tex.

2004) (‘‘[b]reach of the standard of care and causation are separate inquiries

. . . and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other’’).

10 Similarly, a plaintiff alleging a breach of fiduciary duty must show that

any damages sustained were proximately caused by the fiduciary’s breach

of his or her fiduciary duty. See, e.g., Rossman v. Morasco, 115 Conn. App.

234, 243, 974 A.2d 1, cert. denied, 293 Conn. 923, 980 A.2d 912 (2009);

see also T. Merritt, 16 Connecticut Practice Series: Elements of an Action

(2015–2016 Ed.) § 8:1, p. 670.

11 ‘‘There is an exception to this rule, however, [when] there is such an

obvious and gross want of care and skill that neglect is clear even to a lay

person.’’ (Internal quotation marks omitted.) Grimm v. Fox, supra, 303

Conn. 330. This exception ‘‘is limited to situations in which the . . . attorney

essentially has done nothing whatsoever to represent his or her client’s

interests . . . .’’ (Internal quotation marks omitted.) Id.

12 See, e.g., Sommers v. McKinney, 287 N.J. Super. 1, 14, 670 A.2d 99 (App.

Div. 1996)(expert testimony was unnecessary to establish causal connection

between attorney’s charge for services not performed and plaintiff’s receipt

of lesser proceeds from settlement check); but cf. Meyer v. Mulligan, 889

P.2d 509, 516 (Wyo. 1995) (expert testimony was required to prove that

drafting corporate and transactional documents differently would have prevented subsequent dispute and damages resulting therefrom).

13 Although this court apparently never has addressed the issue squarely;

but see Grimm v. Fox, supra, 303 Conn. 352 (Palmer, J., concurring) (to

prevail on legal malpractice claim, ‘‘the plaintiff would be required to prove

not only that the defendants were negligent in their handling of [the plaintiff’s] appeal, but also that [the] appeal would have been successful if the

defendants had represented him competently’’); the Appellate Court has

held on numerous occasions that expert testimony is necessary to establish

causation in legal malpractice cases. See, e.g., Law Offices of Robert K.

Walsh, LLC v. Natarajan, 124 Conn. App. 860, 863–64, 7 A.3d 391 (2010);

Byrne v. Grasso, 118 Conn. App. 444, 451–52, 985 A.2d 1064 (2009), cert.

denied, 294 Conn. 934, 987 A.2d 1028 (2010); Vona v. Lerner, 72 Conn. App.

179, 189, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138

(2003); Solomon v. Levett, 30 Conn. App. 125, 128, 618 A.2d 1389 (1993);

Somma v. Gracey, 15 Conn. App. 371, 374–75, 544 A.2d 668 (1988). This

requirement initially was imported, without discussion, from the medical

malpractice context. See Campbell v. Pommier, 5 Conn. App. 29, 32, 496

A.2d 975 (1985) (citing medical malpractice cases).

14 Because this case was claimed for a jury trial, we leave for another day

the question of whether a different rule should apply in a trial to the court.

15 It bears emphasizing that the plaintiff stands convicted, beyond a reasonable doubt, of fourteen offenses and that her previous direct appeal and
habeas action both were unsuccessful. The decisions disposing of these

actions indicate that the evidence against the plaintiff was compelling. See

State v. Bozelko, supra, 119 Conn. App. 487–89 (discussing facts underlying

defendant’s criminal convictions); Bozelko v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-10-4003804-S (August 13, 2013)

(same), appeal dismissed sub nom. Bozelko v. Commissioner of Correction,

156 Conn. App. 901, 110 A.3d 548, cert. denied, 317 Conn. 904, 114 A.3d

1219 (2015). The plaintiff’s allegations in support of her claims of ineffective

assistance in her unsuccessful habeas petition are similar to the allegations

made in the present case. Although the habeas court concluded that the

defendant had not performed deficiently, it also concluded that, ‘‘perhaps

more significantly,’’ the plaintiff had not shown prejudice, ‘‘even if [the

defendant] had represented the [plaintiff] as she now claims she should

have.’’ Bozelko v. Warden, supra. In particular, the habeas court noted the

plaintiff’s failure to establish what favorable testimony different cross-examination would have yielded, or to establish that certain unfiled motions were

warranted and could have succeeded. Id. It also emphasized ‘‘the devastating

quality of the evidence stacked against the [plaintiff]’’ and ‘‘[t]he copious

nature of that incriminating evidence,’’ and concluded that ‘‘[t]he strength

of the prosecution led, inexorably, to the [plaintiff’s] convictions.’’ Id. In

summarizing, the habeas court concluded that ‘‘[t]he allegations against [the

defendant were] trivial and inconsequential in light of the crushing evidence

of [the plaintiff’s] guilt.’’ Id. Given the apparent strength of the state’s evidence, expert testimony was necessary to show how a different result than

a conviction reasonably could have been obtained. See, e.g., Vort v. Hollander, 257 N.J. Super. 56, 61, 607 A.2d 1339 (App. Div.) (observing that, in

light of trial court’s assessment of plaintiff’s underlying action as nonmeritorious, expert testimony ‘‘[c]learly’’ was required to prove causation in subsequent legal malpractice action), cert. denied, 130 N.J. 599, 617 A.2d 1221

(1992).

16 In light of the fact that the plaintiff was convicted, following her plea

under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162

(1970), of attempting to tamper with several jurors in the criminal matters

underlying this malpractice action; see Bozelko v. Commissioner of Correction, 162 Conn. App. 716, 718–20, 133 A.3d 185, cert. denied, 320 Conn. 926,

133 A.3d 458 (2016); her argument is, to say the least, questionable.

17 ‘‘Under a subjective standard . . . the arbiter from the first [action]

would be asked to testify concerning the effect, if any, of the attorney’s

actions on the outcome of the underlying case. Under an objective standard,

the trier in the malpractice [action] views the first [action] from the standpoint of what a reasonable judge or jury would have decided, but for the

attorney’s negligence.’’ Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300

(App. 1986).