Do You Need an Expert Opinion?

Legal malpractice is a difficult arena for plaintiffs. Much of the time, a case may turn on whether an expert opinion is needed or not. In other words; when is a legal decision susceptible to lay opinion, and when is a legal opinion so specialized that a legal expert is needed to evaluate the adequacy of counsel? In the case, of Szaferman, Lakind, Blumstein, Blader, & Lehmann P.C. v. Parise, A-1871-08T2, 2010 WL 624084 (N.J. Super. App. Div. 2010), the New Jersey Courts construe legal fees as an arena where expert opinion is needed, if the fee provides the basis of the suit. It is an important case because it adds and takes away from necessary pleadings in legal malpractice cases.

The Parises owned a construction company being sued, and executed a retainer agreement with the named law firm in connection to that litigation in April, 2004. The retainer agreement laid out what fees the Parises would be responsible for as clients. The litigation was factually, and legally complex, containing 9 boxes of documents. Preparing for the trial required a great deal of effort by the attorneys. In November, 2004, the Parises wrote to the attorneys insisting they cease working on the litigation once the summary judgment phase was completed in December.

In response to the Parise letter, the attorneys advised the Parises of the need for representation in the upcoming litigation in January, 2005. The Parises changed their minds and re-engaged the attorneys. Prior to trial, the litigation was dismissed by settlement which included, each party paying their respective fees. The Parises paid $59, 442.98 for the litigation, and owed a balance of $58, 970 afterwards. The Parises did not contest these fees. The attorneys filed a claim to collect their fee, and as a result the Parise counterclaimed for legal malpractice. In regards to the counterclaim, the attorneys requested summary judgment because the malpractice claim was based on billing legitimacy but lacked any legal expert opinion. It was sustained by the trial court, so the Parises appealed, which brought it before the Superior court.

The Court after going through the requisite summary judgment standards analyzed the legal malpractice claim. The first step the Court noted is that an attorney is obligated to exercise the reasonable skill and knowledge of a lawyer with ordinary abilities. To establish a legal malpractice claim the client must prove the existence of an attorney-client relationship creating the duty, the breach of that duty, that the breach was a proximate cause of damage suffered, and that actual damages were incurred.

Additionally, the Court addressed expert testimony. Expert testimony is necessary in professional malpractice cases where the matter addressed is so specialized that the average juror could not form a valid judgment of whether the professional's conduct was reasonable. The Court stated the purpose for experts is because the duty a lawyer owes his client is not known by the average juror. In stating this criterion, the Court is setting up an analysis of whether this claim specifically is beyond the knowledge of an average juror.

The exception to expert testimony is when the carelessness of the attorney is readily apparent to anyone of average intelligence and ordinary experience. It is referred to as the "common knowledge" doctrine. The Court used several examples to illustrate this exception such as failure to file within a statute of limitations, or the failure to record a bond or mortgage. These are the acts of misconduct by an attorney which can be judged by an average juror.

The primary case the Parises relied on was Sommers v. McKinney, 287 N.J. Super. 1 (NJ App. Div. 1996). In that case a woman felt she was induced to settle a case based on misrepresentations by her attorney. The Court noted the difference in that case, was that the attorney's misrepresentations were motivated by desire to receive a fee. There was no expert opinion required to evaluate the wrongdoing, since most of the misrepresentations affected decisions the client would have made, not the attorney. The Court intoned that the evidence in Sommers was within the grasp of common understanding. Additionally, inSommers, all the claims involving quality of the work were dismissed because of the lack of an expert opinion.

The Court finally addressed the claim in this case and noted the only dissatisfaction shown by the Parises was with the fee charged. They did not challenge the work, and in a deposition had even indicated satisfaction. Thus, the only evidence of malpractice was based on the Parises own limited experience in paying legal fees. Because legal fees are a calculation which would require an expert to determine, the case was dismissed due to the lack of an expert opinion.

This case demonstrates how important the challenged act is to the litigation. If the Parises had challenged an act which they controlled this case may have turned differently. Additionally, their representation during the malpractice case should have understood that legal fees were a realm of legal expertise outside of common knowledge. This is just one facet of legal malpractice however. Even if the expert report had been filed, it is unclear whether the Parises damages were proximately caused by the breach of their attorneys, or suffered any actual damages. As always, life is harder as a plaintiff since a party defending legal malpractice need only poke a hole in one part of a legal malpractice claim.


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