Kaplan v. Skoloff & Wolfe, P.C. 770 A.2d 1258 (N.J.Super.A.D., 2001)
NJ Underlying Divorce Action Settlement
Student Contributor: John Anzalone
Facts: Attorney represented Plaintiff in a divorce proceeding. Plaintiff alleged that because of the attorney negligence in negotiating a property settlement agreement, she received less than she was entitled to when she accepted it. Plaintiff’s expert concluded that the settlement was not adequate by comparing what she received to anecdotal evidence as to what he got for one former client recently. As a professional negligence action, an expert opinion on liability was required, But the court found Plaintiff’s expert testimony inadmissible because it was based on anecdotal experience of the expert that were unsupported by facts.
Issue: What constitutes an inadmissible expert net opinion?
Ruling: In affirming the dismissal, the Appellate Division held that the expert’s opinion on liability was properly excluded, based on the following factors:
- In New Jersey, expert opinions that are solely conclusions and that fail to provide the basis for the conclusions are considered "net opinions" and are inadmissible as evidence.
- To get an expert’s opinion admitted into evidence, the expert must provide evidence of the accepted practice by lawyers that the defendant failed to adhere to.
- The expert here failed to provide evidence other than anecdotal evidence regarding a case he handled in the recent past and otherwise only established that he would have done something different in the case, and not what reasonable attorneys’ would have done in this case.
…the net opinion rule requires the expert witness ‘to give the why and wherefore of his expert opinion, not just a mere conclusion…’
… Plaintiff’s expert offered no evidential support establishing the existence of a standard of care, other than standards that were apparently personal to himself.
The Lesson: For the expert’s opinion to be admissible in a legal malpractice case, he must define the standard of care and must support its definition by reference to evidence that other experts rely on and which are applicable to lawyers in similar circumstances. The expert’s opinion must not be solely based on the expert’s own personal view and experience. Once the expert esablishes the applicable standard of care or practice, he must then, through reference to the factual evidence, express the opinon how the defendant lawyer deviated from that standard and how that deviation was the cause of the alleged damage.
Posted in: Expert Witnesses