The Meaning of Esoteric

Vazquez v. Macri et al., No: A-3572-10T1 (N.J. Super. 2012) is a New Jersey state case which discusses when an expert is needed to define the professional standard of care. In the original trial, the case was dismissed in the defendant attorney's favor because no expert witness was produced. On appeal, the Plaintiff's main argument was that lay jurors could replace experts in this limited circumstance. The appeals court showed particularly why pre-litigation discovery, specifically depositions are so important in proper case preparation.

The attorney client relationship at issue arose when the Plaintiff hired the respective attorneys to represent her during the purchase of a home. Among the allegations, the most serious relating to malpractice was that the defendant failed to ensure that the home-seller delivered a document which showed all zoning was complied with required by the borough called a CCO. During a deposition taken prior to litigation, the defendant conceded he was responsible for the proper delivery of this document, as the purchaser's attorney. He also testified in a deposition that the realtor gave him a document which purported to show the home was complying with more stringent codes. The problem with this more stringent document was it did not replace the legally required document which showed all zoning was in compliance.

The defendant testified during deposition about the routine practice he maintained related to real estate. In doing so, he described his routine checks during most closings, and acknowledged that in this case, he was unsure if he followed the correct routine in getting the CCO. The home closed in November 2006, and the case was brought in June 2008. The Plaintiff alleged she discovered the problem sometime in 2007.

After the facts, the court went to analysis of whether expert testimony was required for a case such as this. Legal malpractice in their words is a claim of negligence relating to an attorney's representation of a client. In order to make out a proper claim, a person must allege facts which show an attorney-client relationship creating a duty; breach of that duty; and proximate causation of damages suffered by Plaintiff. The general rule which defines duty is that an attorney must use reasonable professional skill in carrying out representation.

Interestingly, the court defines the need for experts as arising in cases 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." Id. The court went on to state that the expert would then define the standard of care which jurors were to apply to the case.

On the other hand, expert testimony is not required when the duty owed a client can be determined by the court as a matter of law and where the breach is obvious. Expert testimony according to the court may not even be needed for proximate cause when it is simply a situation where a loss is caused by the attorney's breach such that the judge can call it a matter of common knowledge. Common knowledge doctrine is best applied when attorneys have failed to fulfill the most basic obligations.

The court then went on to state that the cause of damages and viability of claim was not susceptible to expert testimony in this case. Mainly, the Defendant in his deposition, conceded that the borough required the CCO, as attorney he was responsible for getting the CCO, and he mistakenly believed the document delivered to him was the CCO. The court believed based on the facts of this case, an expert was not necessary for either showing the negligence or that the plaintiff suffered a loss from the harm.

This case is interesting because it seems to draw an unclear line in the sand. For instance, one can think of many obligations which are common knowledge such as deadlines and forgetting to attach documents. At what point however does a procedural rule which may be common to people with legal training become esoteric as opposed to common. Furthermore, at what point do an individual's acts then cut off the proximate cause liability for which an expert is not needed? These are both questions which have no easy answer, and will be further refined as the courts become more adept at applying this rule.


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