Bruce L. Helmich v. Reid W. Kennedy & Kennedy & Kennedy, 796 F.2d 1441 (11th Cir. 1986). · Go Syfert
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Bruce L. Helmich v. Reid W. Kennedy & Kennedy & Kennedy, 796 F.2d 1441 (11th Cir. 1986). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2012–2024 · …statements of fact in a party's brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists. at p. 1443 ✓
18 citation events (10 in the last 25 years) across 11 distinct courts.
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Taylor v. Department of the Army
N.D. Ala. · 2024 · quote attribution · 1 verbatim quote · confidence high
statements of fact in a party's brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists.
discussed Cited as authority (rule) Smith-Duke v. Nidek Medical Product
N.D. Ala. · 2021 · confidence medium
However, “[s]tatements of fact in a party’s brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists.” Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir. 1986).
discussed Cited as authority (rule) Veolia Water North America Operating Services, LLC v. City of Atlanta
11th Cir. · 2013 · confidence medium
Because this is a diversity case, we “look[ ] to state law as to substantive *824 matters but procedural matters are governed by federal law.” Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (citing to Hanna v. Plumer, 380 U.S. 460, 469-74 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965)).
discussed Cited as authority (rule) Abdulla v. Klosinski
S.D. Ga. · 2012 · confidence medium
In this regard, the Court notes: “To create an issue of fact concerning alleged legal malpractice, Georgia re quires the testimony of an expert witness.” Helmich v. Kennedy, 796 F.2d 1441, 1442 (11th Cir.1986).
cited Cited as authority (rule) Leitch v. MVM, INC.
E.D. Pa. · 2007 · confidence medium
Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986), citing Sims v. Mack Truck Corp., 488 F.Supp. 592, 597 (E.D.Pa.1980).
cited Cited as authority (rule) Chumney v. U.S. Repeating Arms Co.
M.D. Ala. · 2000 · confidence medium
See Hammer v. Slater, 20 F.3d 1137, 1140 (11th Cir.1994); Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (per curium).
cited Cited as authority (rule) Hockaday v. Texas Department of Criminal Justice, Pardons & Paroles Division
S.D. Tex. · 1996 · confidence medium
See Schroeder v. Copley Newspaper, 879 F.2d 266, 271 (7th Cir.1989); Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986); see also Netto v. Amtrak, 863 F.2d 1210, 1216 (5th Cir.1989).
cited Cited as authority (rule) Williams v. Hager Hinge Co.
M.D. Ala. · 1995 · confidence medium
Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (statement by attorney in a brief could not substitute for attorney’s affidavit).
cited Cited as authority (rule) Sammy Alvarez v. Aristedes Zavaras, Donice Neal, Thomas Cooper, Cheryl Smith, Mr. Bray, Miss Ganz, and Mr. Pierson.
10th Cir. · 1995 · confidence medium
Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 892 (3d Cir.1992); Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (per curiam).
cited Cited "see" Gonzalez v. Batmasian
S.D. Fla. · 2017 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir. 1986) (holding supporting facts must be asserted in an affidavit, not a brief). .
discussed Cited "see" Southland Health Services, Inc. v. Bank of Vernon
N.D. Ala. · 2012 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) (“Statements of fact in a party’s brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists.”).
discussed Cited "see" A. Stephen Botes v. Howard Weintraub
11th Cir. · 2012 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1442-43 (11th Cir.1986) (upholding the grant of summary judgment against a pro se plaintiff in a diversity legal malpractice suit because the plaintiff failed to produce expert testimony in the form of an affidavit, as required by Georgia law).
discussed Cited "see" Dockery v. North Shore Medical Center
S.D. Fla. · 1995 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986) ("statements in a party's brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists.”).
cited Cited "see" Thomas Schroeder v. Copley Newspaper, D/B/A Waukegan News-Sun, an Illinois Corporation
7th Cir. · 1989 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986).
discussed Cited "see" Equal Employment Opportunity Commission v. Barrett, Haentjens & Co.
M.D. Penn. · 1988 · signal: see · confidence high
See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986); Moorhead v. Millin, 542 F.Supp. 614, 617 (D.V.I.1982); Sims v. Mack Truck Cory. 488 F.Supp. 592, 597 (E.D.Pa.1980) (citing Tunnell v. Wiley, 514 F.2d 971 (3d Cir.1975)) (“Self-serving statements of fact in a party’s brief, not in proper affidavit form, may not be considered in determing if a genuine issue of material fact exists”).
cited Cited "see, e.g." State Farm Mutual Automobile Insurance v. Stanley
S.D. Ga. · 1991 · signal: see, e.g. · confidence medium
See, e.g., Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir.1986); Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir.1984); S.A.
Retrieving the full opinion text from the archive…
Bruce L. HELMICH, Plaintiff-Appellant,
v.
Reid W. KENNEDY and Kennedy and Kennedy, Defendants-Appellees
85-8589.
Court of Appeals for the Eleventh Circuit.
Aug 18, 1986.
796 F.2d 1441
Bruce L. Helmich, pro se., A. Timothy Jones, T. Ryan Mock, Jr., Atlanta, Ga., for defendants-appellees.
Roney, Hatchett, Henderson.
Cited by 18 opinions  |  Published

CORRECTED OPINION

PER CURIAM:

In this legal malpractice case, the principal issue is whether a brief in another case, signed by a member of the Georgia bar, is a sufficient substitute for an affidavit by an expert, generally required to create an issue of fact as to the skill of the defendant attorney’s conduct. We hold that the district court correctly granted summary judgment for the defendant in the face of such argument.

Following his conviction for threatening to bomb Hartsfield International Airport, Bruce L. Helmich filed this legal malpractice action against Reid Kennedy and the law firm of Kennedy and Kennedy who represented him during his criminal trial. He claimed they did not diligently conduct pre-trial investigation or properly prepare for trial and their conduct at trial and in preparing his appeal was grossly negligent.

The defendants’ attorneys filed a motion for summary judgment supported by the affidavit of defendant Reid Kennedy, excerpts from Helmich’s deposition testimony, excerpts from the trial transcripts, copies of various pre-trial and discovery motions filed by the defendants and a copy of various portions of the sentencing hearing transcript.

The district court granted the motion concluding that Helmich had not provided any expert testimony to support his allegations of malpractice and had failed to rebut the presumption the defendants performed their legal services in an ordinarily skillful manner.

This is a diversity jurisdiction case, governed by the substantive law of Georgia. To create an issue of fact concerning alleged legal malpractice, Georgia requires the testimony of an expert witness.

Succinctly stated, it may be said that in a legal malpractice case, the presumption is that the legal services were performed in an ordinarily skillful manner. This presumption remains with the attorney until the presumption is rebutted by expert legal testimony; otherwise, the[*1443] grant of summary judgment in favor of the attorney is proper.

Johnson v. Butcher, 165 Ga.App. 469, 301 S.E.2d 665, 666-67 (1983). Hughes v. Malone, 146 Ga.App. 341, 247 S.E.2d 107, 113 (1978).

Helmich asserts that there was sufficient evidence before the district court to rebut the presumption of counsel’s effective assistance, and specifically argues that the court should have judicially noticed a brief his attorney had filed in a 28 U.S.C.A. § 2255 case challenging his conviction on the ground he was denied effective assistance of counsel. He claims this brief would have raised a genuine issue of material fact pertaining to the reasonableness of the legal representation in his earlier criminal trial.

Statements of fact in a party’s brief, not in proper affidavit form, cannot be considered in determining if a genuine issue of material fact exists. See Sims v. Mack Truck Corp., 488 F.Supp. 592, 597 (E.D.Pa.1980). Briefs serve an entirely different function than affidavits, even though signed by a member of the Bar under the constraint of legal ethics. Helmich should have presented an affidavit from his attorney, if indeed the attorney would furnish expert testimony under oath in an evidentiary hearing that would result from a triable issue of fact.

Contrary to his argument that the decision of the district court offended traditional notions of fair play and substantial justice, Helmich was given more than ample opportunity to provide the court with expert evidence which would support his legal malpractice claims. The record shows he was paroled from prison by the time the court took the defendant’s motion for summary judgment under advisement and had ample opportunity to seek out legal assistance before the court made its ruling.

Helmich contends that the district court should have conducted a hearing as required by O.C.G.A. § 9-11-56(c) prior to granting the defendants’ motion for summary judgment. In diversity actions, however, the federal court looks to the state law as to substantive matters but procedural matters are governed by federal law. Hanna v. Plumer, 380 U.S. 460, 469-74, 85 S.Ct. 1136, 1142-46, 14 L.Ed.2d 8 (1965); Wright, Federal Courts § 59 at 276 (3d ed. 1976). Nothing in Fed.R.Civ.P. 56(c) requires that an oral hearing be held on a motion for summary judgment. McMillian v. City of Rockmart, 653 F.2d 907, 911 (5th Cir.1981).

The decision of the district court granting the defendants’ motion for summary judgment is

AFFIRMED.