Hedinger & Lawless, LLC v. Betal Enterprises, Inc., Superior Court of New Jersey, App. Div., March 10, 2011.
Facts: Defendants sued Hedinger & Lawless for legal malpractice for, among other things, failing to file an answer and third-party complaint. Defendants claimed that as a result of this alleged failure, a default judgment was entered against them which prohibited them from obtaining loans for new business ventures.
In support of their theory against their former attorneys, Defendants submitted an expert report of William H. Micheslon, Esq. The expert opined, in part, that Plaintiff attorneys "should have filed an answer, and on the eve of expiration of the ninety day period, file[d] the third-party complaint…to slow [the adversary’s] case down and to  improve bargaining power." The expert conceded, however, that had Defendants’ former attorneys followed this course of action, the adversary in the underlying action would have eventually succeeded on a motion for summary judgment.
The trial court rejected the opinion as a net opinion because it was based solely on "personal opinion of strategy."
Issues: Was the trial court correct in excluding the expert report as a net opinion? What must an expert rely upon in opining on a claim for legal malpractice?
Ruling: The Appellate Division agreed with the trial court. First, it explained the need for an expert report in certain legal malpractice cases:
Expert testimony is required in cases of profesional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable.
Strategic decisions tend to be an area where expert testimony is required.
With regard to the inadequacy of the report proffered by Defendants’ expert, the Court noted:
The burden of proving the causal relationship rests with the client and cannot be satisfied by mere conjecture, surmise or suspicion.
An expert’s opinion must be based on facts, data, or another expert’s opinion, either perceived by or made known to the expert, at or before trial…An expert is required by this rule to give the why and wherefore of his or her opinion, rather than a mere conclusion.
Not only was [the expert’s] opinion not based on standards accepted by the legal community, but his strategy of delay for the sake of delay is diametrically opposed to the duties of an attorney set forth in Rule 1:4-8 and thus cannot support a claim of breach."
Consequently, the Appellate Division affirmed the trial court’s Order barring Defendants’ expert report as net opinion.
Lesson: In New Jersey, an expert report must rely upon facts in the record, reference case law, treatises, and/or rules of professional conduct, and identify particular departures in the former attorneys’ conduct as compared to the acceptable standards of practice.
Tagged with: Expert Witnesses, New Jersey
Posted in: Expert Witnesses, New Jersey