                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3656
                                  ___________

First Union National Bank, as            *
Trustee of the Southeast Timber          *
Leasing Statutory Trust,                 *
                                         *
             Plaintiff - Appellant,      *
                                         * Appeal from the United States
       v.                                * District Court for the
                                         * Eastern District of Arkansas.
Paul Benham; Paul Benham, PA;            *
Friday, Eldredge & Clark, LLP,           *
                                         *
             Defendants - Appellees,     *
                                         *
____________________                     *
                                         *
Paul Benham; Paul Benham, PA;            *
Friday, Eldredge & Clark, LLP,           *
                                         *
             Third Party Plaintiffs,     *
                                         *
       v.                                *
                                         *
Carl J. Stoney; Jason Kuhns,             *
                                         *
             Third Party Defendants.     *
                                    ___________

                           Submitted: June 23, 2005
                              Filed: September 13, 2005
                               ___________
Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

        First Union National Bank, as Trustee of the Southeast Timber Leasing
Statutory Trust, ("SE Timber") commenced this legal malpractice lawsuit against Paul
Benham ("Benham"), a merger and acquisitions attorney, and his law firm, Friday,
Eldredge & Clark, LLP, for failure to timely file a lawsuit pursuant to Ark. Code Ann.
§ 4-27-1330 to determine the fair value of stock acquired by SE Timber during a
merger with First Land and Timber Corporation ("First Land and Timber"). The
district court excluded the proffered testimony of SE Timber's legal expert, ruling that
the expert lacked the qualifications necessary to testify regarding the applicable
standard of care of an Arkansas attorney. At the end of SE Timber's case in chief, the
district court granted judgment as a matter of law in favor of Benham, holding that
because SE Timber failed to present expert testimony, (1) SE Timber was unable to
prove that Benham's acts amounted to legal malpractice and (2) SE Timber was
unable to show as a matter of law that but for Benham's negligence, it could have won
a trial concerning the fair value of the stock it acquired in the merger. SE Timber
timely appealed the district court's exclusion of its expert testimony and judgment as
a matter of law in favor of Benham. We reverse and remand to the district court for
a new trial.

                                    I. Background
       In 1997, First Land and Timber hired Frank Brown ("Brown") of Brown and
Burke Capital Partners, Inc. to determine the fair price for all of its timberland and
bank stock and arrange a sale of the stock. Brown estimated the price at between $51
million and $54 million. Brown formed SE Timber for the sole purpose of buying all
of First Land and Timber's stock and offered a price of $65 million. SE Timber hired
Carl Stoney ("Stoney"), a California merger and acquisitions attorney, to assist in the
sale by arranging a merger between First Land and Timber and SE Timber. Pursuant

                                          -2-
to the merger, SE Timber, as the surviving entity, would pay First Land and Timber's
stockholders $65 million. This amount was approved as fair value by all but one of
First Land and Timber's stockholders, Pictet Overseas Trust Corp. Ltd., as Trustee of
the Henrietta Y. Jones Trust (hereinafter "Pictet"). Because Stoney was not licensed
to practice in Arkansas, SE Timber hired Benham, an Arkansas attorney and partner
in the law firm of Friday, Eldredge & Clark, LLP, to represent it against Pictet's
dissenters' claim. Benham informed Pictet that he was representing SE Timber
concerning Pictet's claims.

       Pictet wrote a letter to Benham dated October 30, 1998, a copy of which was
also sent to First Land and Timber, demanding a fair value estimate of First Land and
Timber's stock at $88 million instead of $65 million.1 Pictet also stated that the
demand was made pursuant to Ark. Code Ann. § 4-27-1328, which allows a
dissenting shareholder to reject the corporation's offer of payment and notify the
corporation in writing of its own estimate of the fair value of its shares.

       SE Timber did not bring suit within 60 days of Pictet's October 30, 1998 letter
as required by Ark. Code Ann. § 4-27-1330. Instead, on January 6, 1999, Benham,
on behalf of SE Timber, offered to pay Pictet based on a fair value estimate of $65
million. This offer was rejected on January 15, 1999, in a letter that was virtually
identical to the letter sent by Pictet on October 30, 1998. On January 20, 1999,
Benham advised SE Timber of Pictet's January 15, 1999 letter. According to Benham,
the January 15, 1999 letter triggered the 60-day rule under § 4-27-1330. Benham did
not advise SE Timber that the October 30, 1998 letter would trigger the 60-day rule.


      1
        This estimate was based on a bid from a company called MERL, who offered
to swap some of its preferred stock for all the stock in First Land and Timber. Under
MERL's proposal, seven years after the swap, it would buy back its preferred stock
for $88 million. According to Brown, the offer was unacceptable because First Land
and Timber wanted to sell its assets, not make another investment. Brown also noted
that seven years after making its offer, MERL went out of business.

                                         -3-
        Benham initially advised SE Timber that Arkansas law required Pictet to file
a lawsuit against SE Timber to obtain the fair value of $88 million demanded in its
letter. Later, however, on February 12, 1999, Benham advised SE Timber that § 4-27-
1330 required SE Timber to file a lawsuit to obtain a judicially derived fair value and
avoid the amount demanded. SE Timber instructed Benham to file suit on March 15,
1999.

        In that suit, the district court granted summary judgment in favor of Pictet,
holding SE Timber failed to comply with § 4-27-1330 by filing a lawsuit within 60
days of the October 30, 1998 letter. SE Timber was ordered to pay Pictet according
to a fair value estimate of $88 million, which resulted in Pictet receiving $1,789,303
more than the other stockholders. SE Timber was further ordered to pay Pictet
$80,514.37 in costs and attorney's fees.2

       SE Timber filed a complaint in the United States District Court for the Eastern
District of Arkansas against Benham and Friday, Eldredge & Clark, LLP, alleging
legal malpractice. SE Timber filed a motion for summary judgment, which included
the affidavit of Charles Owen ("Owen"), an Arkansas attorney, who opined that
Benham's conduct in representing SE Timber had fallen below the applicable
standard of care. Owen based his opinion, in part, upon Benham's failure to notify SE
Timber that Pictet's October 30, 1998 letter complied with § 4-27-1328 and Benham's
failure to file a stock valuation suit within 60 days of that letter as required by § 4-27-
1330. In support of his opposition to summary judgment, Benham submitted the
affidavit of Arkansas attorney John Tisdale ("Tisdale"). Tisdale opined that Benham
exercised reasonable skill and diligence as ordinarily used by other attorneys in good
standing in Arkansas. According to Tisdale, Pictet's October 30, 1998 letter did not


      2
       In addition, Pictet sued SE Timber for conversion and breach of fiduciary
duty. According to SE Timber, these claims, as well as resisting Pictet's summary
judgment, have cost an additional $182,183.31 to defend.

                                           -4-
meet the requirements of a demand letter as required under § 4-27-1328 and therefore
the 60-day rule under § 4-27-1330 was not triggered until receipt of the January 15,
1999 letter. The district court denied SE Timber's motion for summary judgment,
ruling that genuine fact issues remained concerning whether Benham's representation
fell below the generally accepted standard of care.

       SE Timber's malpractice suit against Benham proceeded to a jury trial on
October 12, 2004. After having already denied a motion in limine to disqualify Owen
as an expert, the district court ruled him unqualified to testify under Rule 702 of the
Federal Rules of Evidence. According to the district court, Owen lacked the
experience or education relating to the standards and practice of an Arkansas attorney
for his testimony to show sufficient relevance and reliability under the facts and
circumstances of this case. At the close of SE Timber's case in chief, Benham moved
for judgment as a matter of law. The district court ruled that SE Timber was required
to present expert testimony as to the relevant standard of practice of an Arkansas
attorney because the issue was not within the common knowledge of a lay person.
The district court also determined that expert testimony was required to show whether
SE Timber would have prevailed in the underlying stock valuation suit against Pictet.
Because SE Timber's proposed expert was disqualified, SE Timber presented no
expert testimony on either issue. Based upon these determinations, the district court
granted judgment as a matter of law in favor of Benham.

       SE Timber timely filed a notice of appeal, arguing that the district court (1)
abused its discretion by ruling Owen unqualified to testify as an expert to the
applicable standard of practice in Arkansas; (2) erred in determining that the issue of
legal malpractice in this case was not within the common knowledge exception; and
(3) erred in ruling that as a matter of law, expert testimony was required to show that
but for Benham's alleged negligence, the outcome of the underlying stock valuation
lawsuit would have been different.



                                         -5-
                                     II. Discussion
                         A. Arkansas Law: Legal Malpractice
        We review the district court's interpretation of state law de novo. Vanderford
v. Penix, 39 F.3d 209, 211 (8th Cir. 1994). Under Arkansas law, "an attorney is
negligent if he or she fails to exercise reasonable diligence and skill on behalf of a
client." Barnes v. Everett, 95 S.W.3d 740, 744 (Ark. 2003) (citations omitted). To
prevail on its claim of attorney malpractice, SE Timber must show that Benham's
"conduct fell below the generally accepted standard of practice and that such conduct
proximately caused . . . [SE Timber] damages." Id. To prove damages and proximate
cause, SE Timber must show that, but for the alleged negligence of Benham, the
result in the underlying action would have been different. Id. This requires SE Timber
to prove a case within a case, or in other words, SE Timber must prove the merits of
the underlying case as part of its proof of malpractice. Id. Arkansas law "has
consistently held that the attorney's conduct must be measured against the generally
accepted standard of practice." Id.


      An attorney is not liable to a client when, acting in good faith, he or she
      makes mere errors of judgment. Moreover, an attorney is not, as a matter
      of law, liable for a mistaken opinion on a point of law that has not been
      settled by a court of the highest jurisdiction and on which reasonable
      attorneys may differ.


Id. To prove its case to a jury, SE Timber had to present "expert testimony as to what
the standard of practice is, unless the . . . [district] court determine[d] that such
testimony [wa]s not necessary because the case falls within the common-knowledge
exception." Id. at 749.

       In this case, the district court ruled that (1) Owen was not qualified to testify
as an expert to the applicable standard of practice of an Arkansas attorney and (2) SE
Timber's claim failed as a matter of law because (a) the issue of legal malpractice in

                                          -6-
this case did not fall within the common-knowledge exception and (b) expert
testimony was required to show that the outcome of the underlying lawsuit would
have been different but for the alleged malpractice. We address these issues in turn.

                       B. Admissibility of Expert Testimony
      We review the district court's decision regarding the admissibility of expert-
witness testimony for an abuse of discretion. Craftsmen Limousine, Inc. v. Ford
Motor Co., 363 F.3d 761, 776 (8th Cir. 2004). Federal Rule of Evidence 702 governs
the admission of expert testimony and provides:

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill, or experience,
      training, or education, may testify thereto in the form of an opinion or
      otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
      the testimony is the product of reliable principles and methods, and (3)
      the witness has applied the principles and methods reliably to the facts
      of the case.

We give district courts great latitude in determining whether expert testimony meets
the reliability requisites of Rule 702. Craftsmen Limousine, Inc, 363 F.3d at 776.
Under Rule 702, it is the trial judge, in admitting expert testimony, who has the
gatekeeping responsibility to "ensur[e] that an expert's testimony both rests on a
reliable foundation and is relevant to the task at hand." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 597 (1993)). In making that determination, the district court may
evaluate one or all of the following factors: (1) whether the theory or technique can
be or has been tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) whether the theory or technique has a known or potential
error rate and standards controlling the technique's operation; and (4) whether the
theory or technique is generally accepted in the scientific community. Daubert, 509


                                         -7-
U.S. at 593–94; see also Craftsmen Limousine, Inc., 363 F.3d at 776–77 (applying
Daubert to expert witness testimony in an antitrust case). Regardless of what factors
are evaluated, the main inquiry is whether the proffered expert's testimony is
sufficiently reliable. See Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir.
2005) ("[t]here is no single requirement for admissibility as long as the proffer
indicates that the expert evidence is reliable and relevant").

       The district court ruled that Owen had not demonstrated the experience or the
education to show sufficient reliability in his opinions. While acknowledging Owen's
substantial experience in the merger and acquisition fields, the district court found
that because Owen's conclusions were based on his own experience and not from the
experience of other lawyers, his assessment of what a reasonable lawyer might do is
insufficient. Specifically, the district court reasoned that:

      Mr. Owen testified to substantial experience in the merger and
      acquisition fields. I think it fair to say that he has established expertise
      broadly in that area. What of the specific issues here, which is the
      knowledge about what a reasonable lawyer in Arkansas would do with
      respect to complying with that statute? As I interpreted his testimony,
      that comes from experience in two cases, and not from what other
      lawyers have done, but what he did, and from that concludes that a
      reasonable lawyer would do what he did. I don't think that passes the
      test of having expertise–it doesn't mean his judgment is bad or that he
      would do it wrong. I'm talking not at all about that. I'm talking about his
      assessment of what a reasonable lawyer would do. It does not rely upon
      education, investigation, scholarly works, tests of any kind, special
      study that he has made as exhibited by writings.
                                            ....
      No effort was made to learn the history of the statute: Why was this
      done? How was it done? What are the concepts that are being breathed
      into the statute? Hopefully are expressed well, hopefully will be
      interpreted rightly, as the legislature intended.
                                          ....

                                          -8-
      I mean it Mr. Owen, when I say I mean no disrespect to you. But I am
      deserting my gatekeeping duty if I don't say what I mean, and what I
      mean is, I think that in this circumstance, the issues involved in this
      case, that I must say you have not demonstrated the experience or the
      education to show sufficient relevance and reliability in your opinions
      relating to the issues, which are very tight, small, and may be–not
      unimportant, but I mean small, specific issues that are at issue here.

(Emphasis added.)

       The district court's ruling cannot be reconciled with Rule 702, which expressly
allows a witness to qualify as an expert based on his own knowledge, skill,
experience, training or education. See Fed. R. Evid. 702. We have excluded expert
testimony because a proffered expert lacked personal experience in the area of
testimony. See Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254
F.3d 706 (8th Cir. 2001). In Wheeling Pittsburgh Steel Corp., we held that it was an
abuse of discretion to allow a hydrologist to testify as an expert regarding safe
warehousing practices. Id. at 715. In so ruling, we reasoned that it was clear that "a
hydrologist specializing in flood risk management . . . easily qualifies as an expert
under Federal Rule of Evidence 702 . . . [and t]hough eminently qualified to testify
as an expert hydrologist regarding matters of flood risk management, . . . [the expert]
sorely lacked the education, employment, or other practical personal experiences to
testify as an expert specifically regarding safe warehousing practices." Id. (Emphasis
added.)

      The district court's ruling also attacks the factual basis of Owen's expert
testimony. "As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party
to examine the factual basis for the opinion in cross-examination. Only if the expert's
opinion is so fundamentally unsupported that it can offer no assistance to the jury
must such testimony be excluded." Bonner v. ISP Tech., Inc., 259 F.3d 924, 929–30

                                         -9-
(8th Cir. 2001) (quoting Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968,
974 (8th Cir. 1995) (internal citations and quotations omitted)). Owen's testimony
was not so fundamentally unsupported that it can offer no assistance to the jury.

       Owen has been an attorney licensed in the state of Arkansas for over 36 years
and has practiced extensively in the area of mergers and acquisitions. Arkansas is the
only state where Owen has maintained a license. Owen has previously received
demand letters from dissenting shareholders and was familiar with §§ 4-27-1328 and
4-27-1330. He answered in the affirmative when asked whether his opinion refers to
an attorney with reasonable diligence and the skill ordinarily used by attorneys. He
answered in the affirmative when asked whether his experience made him aware of
the reasonable degree of care that an attorney must apply in this case. In making his
opinion, Owen relied upon the depositions of the parties, the witnesses, the facts and
circumstances surrounding SE Timber's merger with First Land and Timber and
acquisition of its stock, and his own experience. Given these facts, we hold the
district court abused its discretion in disallowing Owen's expert testimony on the
issue of legal malpractice in Arkansas.3

                            C. Judgment as a Matter of Law
       We review the grant or denial of judgment as a matter of law de novo, applying
the same standards used by the district court. Phillips v. Collings, 256 F.3d 843, 847
(8th Cir. 2001). According to Rule 50 of the Federal Rules of Civil Procedure,
judgment as a matter of law should not be granted unless "a party has been fully heard
on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue." Fed. R. Civ. P. 50(a)(1). In applying this standard,
we draw "all reasonable inferences in favor of the nonmoving party without making


      3
       Having determined that the district court erred in excluding SE Timber's
expert, we need not reach the issue whether this malpractice case fits the common-
knowledge exception.

                                           -10-
credibility assessments or weighing the evidence." Phillips, 256 F.3d at 847 (citations
omitted). "A reasonable inference is one 'which may be drawn from the evidence
without resort to speculation.'" Fought v. Hayes Wheels Int'l, Inc., 101 F.3d 1275,
1277 (8th Cir. 1996) (quoting Sip-Top, Inc. v. Ekco Group, Inc., 86 F.3d 827, 830
(8th Cir. 1996)). Judgment as a matter of law is appropriate "[w]hen the record
contains no proof beyond speculation to support [a] verdict." Sip-Top, Inc., 86 F.3d
at 830 (citation omitted).

       The district court ruled that expert testimony is required to show SE Timber's
likelihood of success in the underlying action. In so ruling, the district court reasoned:

      Suffice it to say, Mr. McDermott's client here hasn't shown that there
      would have been victory there. Would that require expert evidence?
      Well, I suspect so. . . . I strongly suspect it would require expert damage,
      and it certainly requires some evidence that they would have won, not
      just they would have had evidence that the jury could have found for
      them if it had believed all its evidence and disbelieved all the others. I
      don't think that would do so the evidence is insufficient here to show
      that there would have been victory for his side of the fight.

       Arkansas law does not require expert testimony to prove the likelihood of a
different outcome in the underlying stock evaluation suit.4 Under Arkansas law, the


      4
       We also note that both §§ 4-27-1328 and 4-27-1330 of the Arkansas Code
Annotated replaced and repealed § 64-707 of the 1980 Arkansas Statutes. Section 64-
707 was first enacted in 1965 and had almost the exact same language. See Ark. Stat.
Ann. § 64-707 (repealed 1987) ("If a shareholder of a corporation which is a party to
a merger or consolidation shall file with such corporation . . . a written objection to
such plan of merger or consolidation, and shall not vote in favor thereof . . . such
shareholder, within ten [10] days after the date on which the vote was taken, . . . shall
make written demand on the surviving or new corporation . . . for payment of the fair
value of his shares"). Unlike § 4-27-1330, § 64-707 required the dissenting
shareholder to file a petition asking for a finding and determination of the fair value

                                          -11-
term "fair value" is recognized as also referring to "value," "fair cash value," "market
value," and "full market value." Gen. Sec. Corp. v. Watson, 477 S.W.2d 461, 462, n.2
(Ark. 1972) (discussing "fair value" under shareholder's dissenter's suit under § 64-
707). Arkansas also recognizes that "there is no set formula to determine the 'fair cash
value' of stock."5 Id. (citing Victor Broad. Co., Inc. v. Mahurin, 365 S.W.2d 265 (Ark.


of his shares. See id. ("[i]f within such period of thirty [30] days the shareholder and
the surviving . . . corporation do not so agree, the dissenting shareholder may, within
sixty [60] days after the expiration of the thirty-day period, file a petition . . . asking
for a finding and determination of the fair value of such shares"). Therefore any
argument that §§ 4-27-1328 and 4-27-1330 are new or novel law and thus require
expert testimony for its interpretation is disingenuous. See generally Timothy D.
Brewer, An Overview of the 1987 Arkansas Business Corporation Act, 10 U. Ark.
L.R. L. Rev. 431, 453–57 (1987) (comparison of shareholder dissenter's rights under
the 1965 Act and the 1987 Act); Mary Elizabeth Matthews, A Statutory Primer: The
Arkansas Business Corporation Act of 1987, 1987 Ark. L. Notes 81, 84–85 (1987)
(same).
      5
       On this issue, the Arkansas Supreme Court has reasoned:

      The problem of finding the fair value of stock is a special problem in
      every particular instance. Since the dissentient will not unite with the
      majority, the value of his stock should not be affected by a corporate
      change in which he refused to participate, whether the result be
      appreciation or depreciation, and this the statute recognizes and
      eliminates but otherwise affords no express criterion of fair value. . . .
      The owner of shares of stock in a corporation whose legal existence is
      at an end would be entitled to receive the aliquot proportion which the
      number of shares held would be entitled to receive in the distribution of
      the net amount of the corporate funds in which his particular kind of
      stock would be entitled to share. Thus, by an ascertainment of all the
      assets and liabilities of the corporation, the intrinsic value of the stock,
      and not merely its market value, when traded in by the public, would be
      determined. If the dissenting owner received this amount, so ascertained,
      he would receive the fair value of his stock.


                                           -12-
1963)). Relying on cases from other jurisdictions, Arkansas has examined the
following when determining fair value of stock: "asset value, earnings, dividends,
management and '[e]very relevant fact and circumstance which enters into the value
of the corporate property and which reflects itself in the worth of corporate stock.'''
Gen. Sec. Corp., 477 S.W.2d at 463 (citing Phelps v. Watson-Stillman Co., 293
S.W.2d 429 (Mo. 1956)). Moreover, the Arkansas Supreme Court has held that a
stock broker hired to value the shares of stock, and who actually did cause to be made
an evaluation of the shares of stock, was a qualified witness to give sufficient
evidence on the fair value of stock. Gen. Sec. Corp., 477 S.W.2d at 464.

       The district court also misread Barnes and Vanderford, neither of which
required expert testimony to prove the proximate cause element of a legal malpractice
action. In Barnes, the Arkansas Supreme Court did not hold that expert testimony was
required to prove whether the outcome of the underlying case would have been
different, rather expert testimony was required to establish the applicable standard of
practice of an attorney in Arkansas for purposes of legal malpractice.6 See Barnes, 95
S.W.3d at 749. The issue of expert evidence was never raised in Vanderford, and we
affirmed summary judgment on the basis that the malpractice plaintiff failed to
present any evidence that the outcome of his action would have been different but for
the alleged malpractice. Vanderford, 39 F.3d at 211–12. As we explained in Justice
v. Carter, 972 F.2d 951, 957–58 (8th Cir. 1992), "[a]lthough the issue at hand in the
malpractice case is a determination of the outcome of the underlying . . . case, the jury




Gen. Sec. Corp., 477 S.W.2d at 462–63 (citing Am. Gen. Corp. v. Camp, 190 A. 225
(Md. 1937)).
      6
       Appellants in Barnes did argue on appeal that expert testimony was
erroneously allowed to determine whether a dismissal in the underlying suit was
proper, however, the court did not rule on this issue because Appellants failed to
properly preserve it at the trial court. Barnes, 491 S.W.3d 748.

                                          -13-
in the malpractice case is permitted to decide this by substituting its judgment for the
judgment of the factfinder, be it jury or judge, in the earlier case."

        In its case in chief, SE Timber presented the video deposition of Brown, who
was engaged to make a value of SE Timber's stock before the merger. Brown testified
to the facts and circumstances surrounding the merger, including the fact that he was
hired to analyze what would be a fair price for all First Land and Timber's timberland
and bank stock. Brown testified that the fair value of the stock of First Land and
Timber at the time it agreed to sell it was no more than $65 million. Brown also
testified that First Land and Timber's directors accepted SE Timber's $65 million
offer because it was the best offer. According to Brown, there was no basis for
Pictet's claim that the acquired stock was worth $88 million. Brown's testimony was
sufficient evidence of the fair value of the shares of First Land and Timber's stock.
Accordingly, judgment as a matter of law was improper.

                                  III. Conclusion
      For the reasons stated above, we reverse and remand for a new trial consistent
with the views expressed in this opinion.

BYE, Circuit Judge, concurring in part and dissenting in part.

       I agree the district court improperly granted judgment as a matter of law in
favor of Benham with respect to both liability and damages, and I concur in the
Court's decision to reverse and remand for a new trial. I also agree the district court
abused its discretion when, on the grounds Owen lacked the experience or education
necessary to testify in this case regarding the standard of care required by a lawyer
practicing in Arkansas, it excluded the testimony of SE Timber's legal expert, Charles
Owen.




                                         -14-
        I do disagree, however, with the Court's failure to address whether the legal
malpractice involved in this case fits within the common-knowledge exception, an
issue the Court states it need not address after determining the district court erred in
excluding Owen's testimony. In my view, the one (declining to address the common-
knowledge exception) does not necessarily follow from the other (deciding the expert
testimony issue). To the contrary, I view it as unnecessary to decide whether the
district court erroneously excluded Owen's testimony if, in fact, the malpractice was
so obvious expert testimony was unnecessary. By remanding for a new trial on both
liability and damages, we are implicitly indicating there is a genuine issue of fact with
respect to whether the conduct in this case fell below the applicable standard of care.
Because there are no genuine issues of material fact on such issue, I believe SE
Timber should be saved the expense of a second trial on liability. I would, instead,
remand with instructions to enter judgment as a matter of law in SE Timber's favor
on the issue of liability, and limit the scope of the second trial to the issue whether the
legal malpractice caused SE Timber any damage.

        There is no dispute lawyer Benham missed the applicable statutory deadline for
filing a fair valuation suit. As the Court notes, SE Timber lost its fair valuation suit
because it failed to file such timely. The district court presiding over the valuation
suit specifically held Pictet's October 30, 1998, letter triggered SE Timber's obligation
to file suit within 60 days:

      Pictet complied with § 1328 in its October 30, 1998 letter by demanding
      payment of Pictet's own estimated fair value of its shares . . .. According
      to § 1330, [SE Timber] had sixty (60) days from October 30, 1998, to
      commence a proceeding to resolve Pictet's claim. [SE Timber] did not
      commence this proceeding until March 15, 1999, two and one-half
      months late. . . . To summarize, [SE Timber] clearly failed to pay Pictet
      as required by the statute under § 1325, and clearly failed to commence
      a timely judicial proceeding under § 1330, the consequence of which is
      that [SE Timber] must pay Pictet the amount it demanded on October
      30, 1998, which is $5,130,752.00, plus interest.

                                           -15-
App. at 149-50.

       The district court presiding over the fair valuation suit also noted the applicable
statutory procedure "is simple and straightforward." App. at 145. I agree. The
Arkansas Business Corporation Act of 1987 (the Act), Ark. Code tit. 4, ch. 27, sets
forth in a very straightforward manner the step-by-step procedure a dissenting
shareholder must undertake to assert dissenter's rights under the Act. Likewise, the
steps a corporation must consider in responding to a shareholder exercising
dissenter's rights are set forth in a straightforward manner. Up until SE Timber failed
to respond timely to Pictet's payment demands, both SE Timber and Pictet precisely
followed the procedures required by the Act.

        First, SE Timber informed Pictet a vote on the merger would take place at a
special shareholder's meeting, and notified Pictet of its dissenter's rights.7 In
response, Pictet notified SE Timber it would dissent from the merger and preserved
its dissenter's rights.8 Benham next provided notification of the approved merger and
advised Pictet it should make a demand for payment and deposit the certificates for
the dissenting shares.9 Pictet timely certified it was the beneficial owner of 6,000

      7
        "If proposed corporate action creating dissenters' rights . . . is submitted to a
vote at a shareholders' meeting, the meeting notice must state that shareholders are
or may be entitled to assert dissenters' rights under this chapter and be accompanied
by a copy of this chapter." Ark. Code Ann. § 4-27-1321(a).
      8
        "If proposed corporate action creating dissenters' rights . . . is submitted to a
vote at a shareholders' meeting, a shareholder who wishes to assert dissenters' rights
(1) must deliver to the corporation before the vote is taken written notice of his intent
to demand payment for his shares if the proposed action is effectuated and (2) must
not vote his shares in favor of the proposed action." Ark. Code Ann. § 4-27-1321(a).
      9
      "[T]he corporation shall deliver a written dissenters' notice to all shareholders
who satisfied the requirements of § 4-27-1321 [stating] where the payment demand

                                          -16-
shares of First Land stock, demanded payment of the fair value of the shares, and
deposited its share certificates.10

       Upon receipt of Pictet's payment demand, the Act required SE Timber to either
a) estimate the fair value of the stock and pay Pictet for its shares within sixty days,
or b) return the share certificates to Pictet.11 SE Timber failed to pay Pictet within 60
days, triggering Pictet's statutory right to make its own fair value estimate.12

      Pictet's October 30 letter specifically referred to the fact that "[s]ixty days have
now elapsed since the date set out for demanding payment contained in your letter to
us [and] we have not received a payment for our shares nor the estimate by the


must be sent and where and when certificates for certificated shares must be deposited
[and setting] a date by which the corporation must receive the payment demand."
Ark. Code Ann. § 4-27-1322.
      10
         "A shareholder sent a dissenters' notice described in § 4-27-1322 must
demand payment, certify whether he acquired beneficial ownership of the shares
before the date required to be set forth in the dissenters' notice . . . and deposit his
certificates in accordance with the terms of the notice." Ark. Code Ann. § 4-27-
1323(a).
      11
         "[A]s soon as the proposed corporate action is taken, or upon receipt of a
payment demand, the corporation shall pay each dissenter who complied with
§ 4-27-1323 the amount the corporation estimates to be the fair value of his shares,
plus accrued interest." Ark Code Ann. § 4-27-1325(a). "If the corporation does not
take the proposed action within sixty (60) days after the date set for demanding
payment and depositing share certificates, the corporation shall return the deposited
certificates and release the transfer restrictions imposed on uncertificated shares." Id.
at § 4-27-1326(a).
      12
        "A dissenter may notify the corporation in writing of his own estimate of the
fair value of his shares and amount of interest due, and demand payment of his
estimate . . . [if] the corporation fails to make payment under § 4-27-1325 within sixty
(60) days after the date set for demanding payment." Ark. Code Ann. § 4-27-1328.

                                          -17-
corporation." The October 30 letter also specifically referred to Pictet's statutory
right to make its own fair value estimate under § 4-27-1328, and set forth a fair value
estimate of $88 million. Thus, there is simply no dispute the October 30 letter
triggered the 60-day deadline for SE Timber's fair valuation suit,13 and SE Timber's
concomitant obligation to pay Pictet the full amount of its estimate if no such suit was
filed.14

        Indeed, the undisputed facts in this case establish lawyer Benham knew the
October 30 letter triggered the 60-day deadline for filing a fair valuation suit. As the
Court notes, Pictet sent a second demand letter to SE Timber on January 15, 1999,
which was substantively identical to the October 30 letter. After receiving the
January 15 letter, Benham advised SE Timber the January 15 letter triggered the 60-
day rule under § 4-27-1330. It necessarily follows, then, if Benham knew the January
15 letter triggered the 60-day deadline, he knew or should have known the
substantively identical October 30 letter had already triggered the deadline. Thus, in
this particular case, I simply cannot determine there is any genuine issues of material
fact for the jury concerning the reasonableness of Benham's conduct in missing the
statutory deadline. Although I take no great joy in noting this, missing a statutory
deadline is the classic example of when a lawyer's lack of care and skill is so obvious
the trier of fact can find negligence as a matter of common knowledge. See Kaempe
v. Myers, 367 F.3d 958, 966 (D.C. Cir. 2004) ("Examples of attorney actions (or
failures to act) that fall within the 'common knowledge' exception include . . .
allowing the statute of limitations to run on a client's claim[.]"); Williams v.

      13
       "If a demand for payment under § 4-27-1328 remains unsettled, the
corporation shall commence a proceeding within sixty (60) days after receiving the
payment demand and petition the court to determine the fair value of the shares and
accrued interest." Ark. Code Ann. § 4-27-1330.
      14
        "If the corporation does not commence the proceeding within the sixty-day
period, it shall pay each dissenter whose demand remains unsettled the amount
demanded." Ark Code Ann. § 4-27-1330.

                                         -18-
Callaghan, 938 F.Supp. 46, 50 (D.D.C. 1996) ("Allowing a statute of limitations to
run is an example of the type of conduct by an attorney which can be found negligent
as a matter of common knowledge."); O'Neil v. Bergan, 452 A.2d 337, 342 (D.C.
1982) (same); Barth v. Reagan, 546 N.E.2d 87, 90-91 (Ill. App. Ct. 1989) ("Expert
testimony has been held to be unnecessary in Illinois . . . in cases where the attorney
has failed to comply with the statute of limitations."); Michael A. DiSabatino, J.D.,
ADMISSIBILITY AND NECESSITY OF EXPERT EVIDENCE AS TO
STANDARDS OF PRACTICE AND NEGLIGENCE IN MALPRACTICE ACTION
AGAINST ATTORNEY 14 A.L.R.4th 170 at § 5 (1982) (discussing cases in which
expert testimony was or was not required where alleged malpractice stemmed from
attorney's failure to file a case within a statutory deadline).

        I also find no joy in discussing the obviousness of the malpractice committed
in this case. I do not believe, however, the parties or the district court should suffer
the unnecessary expense of a second trial on the issue of liability to spare this
appellate court from the displeasure of doing so. As a consequence, I respectfully
dissent from the Court's failure to address whether the malpractice involved in this
case fits within the common-knowledge exception. I would reverse and remand for
a trial solely on the issue whether the malpractice caused SE Timber any damages.
                          ______________________________




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