NJ Legal Malpractice Per Se: No Expert's Affidavit Required
Joyce A. Popwell v Law Offices of Broome and Horn, 363 N.J. Super. 404 (App. Div. 2002)
NJ Underlying Personal Injury action
Student Contributor: Candice Deaner
Facts: After the court appointed arbitrator found that plaintiff had no cause of action for negligence against the underlying defendant plaintiff’s attorney failed to file for a trial de novo within the time limits set out by R. 4:21A-6(b)(1), A trial de novo filing would have preserved plaintiff’s claim for trial and would not have subjected it to dismissal. Defendants made a cross motion to dismiss, alleging that Plaintiff’s failure to submit an affidavit of merit in the legal malpractice action, as required by statute, required the grant of summary judgment dismissing the malpractice complaint.
Issue: Does the Plaintiff’s failure to submit an expert's affidavit of merit to support its allegation of legal malpractice when it was common knowledge that failure to file a timely application for a trial de novo amounts to negligence per se for which no expert affidavit or testimony would be necessary.
Ruling: The requirement of the filing of an affidavit of merit is not applicable in this matter because Plaintiff's allegations do not require the testimony of an expert in order to permit the jury to determine the issue of negligence. Affidavits of merit are not required where, as here, it was “common knowledge” that the defendant attorney was negligent in blowing a time limit the consequences of which included the dismissal with prejudice of plaintiff's causes of action.
Lesson: In clear cases of attorney negligence, where it is common knowledge that the attorney was negligent by violating a statutory time limit that caused plaintiff to forefeit her claim, no expert's affidavit is required, because the jury can determine whether the Defendants is negligent based on "common knowledge" and without the need for expert testimony.
I agree with this court's holding. Just like in Medmal cases, where if the act was clearly negligent (IE leaving a sponge in a person during surgery), no expert is needed, it follows that in legal malpractice, the same principles should apply.
I agree, some things are just common knowledge, and do not require an expert. However, when dealing with legal malpractice actions, things may not be as clear cut as leaving a sponge in someone after surgery. Many rules in the legal profession may seem as if they would be common knowledge, but in fact are not common knowledge amongst jurors.
In sum, I do agree with Ms. Goldberg, however, I believe that in the legal profession, due to the complexity and ever changing rules, determining whether a lawyer was negligent may not be as clear cut as it is in other professions, such as the medical profession.
I agree with Ms.Kritikos, that instances such as the case at bar, an expert need not be required. A lay person can easily determine that an attorney had a duty to file for a trial de novo on time, and failure to do so is a breach of the attorney's duty; However, there are many duties which a lawyer has to a client which may not be so obvious to a lay person. The duties a lawyer has are similar to those a doctor has to a patients, and are held to a much higher standard. Therefore, an expert may still be required in those more complex cases in which an attorney has a duty to the client which a lay person may not be aware of.