Better Safe than Sorry

Swain v. Alterman, A-4214-10T4, 2011 WL 6112126 (N.J. Super. Ct. App. Div. December 9, 2011) is an important case in New Jersey for legal malpractice plaintiffs who do not properly procure an affidavit of merit. The affidavit of merit is a letter from another attorney stating that the defendant attorney did not uphold his duty as required by the profession.

This case originated from an accident in Delaware between the New Jersey plaintiffs, and a New York driver. On June 9, 2006, the accident occurred, injuring Harry Swain. In September, 2006 Harry, and his wife visited the law firm of Alterman & Associates in Cherry Hill. At that meeting, the Swains signed an agreement to be represented by Alterman in this case. There was never a lawsuit filed in this case, and in fact the record of the case disclosed that this September meeting was the only one which ever occurred. No investigation of the injury or accident ever occurred.

According to Alterman, he advised the Swains to seek counsel in Delaware because he was not licensed to practice law in that state. He also stated that his staff made various attempts to make further contact with the Swains in order to forward their case to Delaware counsel. He alleged that as a result of lack of contact, he closed the file prior to the expiration of the statute of limitations.

The Swains disputed Alterman's fact recitation. They claimed to have signed agreements with Alterman, at which time he kept the copies. Mr. Swain claimed to have made several attempts to contact Alterman's office numerous times, but with the exception of 2 times, never received a return call. The Swains believed that Alterman was handling their case based on an e-mail from 2007 in which Ms. Swain received an e-mail containing advice from Alterman to come talk about the injury case, because the status had changed. The Swains also, never received a letter containing advice to contact another attorney, or informing them their case was being dropped.

According to the plaintiffs, Alterman called on the day the statute of limitations was set to expire, at which time they promptly returned his call. They received no answer, and tried to call once more. Following the lack of contact, the Swains sought out new counsel to handle the complaint. In February 2010, Alterman was in Florida litigating a case and advised the new attorney he had lost the file, after first claiming it was in storage. The plaintiffs then filed this claim in July of 2010 based on mishandling the file, failing to file the case within the statute of limitations, and overall breach of duty. The trial court initially dismissed the case because of the lack of a letter of merit. The plaintiffs disputed the necessity of such a letter.

The court explained the applicable case law to such circumstances. Filing of a certificate of merit is partially dependent on whether expert testimony will be needed to prove any element of the legal malpractice cause of action. To establish legal malpractice requires proof of the existence of an attorney-client relationship creating a duty on the attorney, the breach of the duty, and proximate causation of harm. In most cases, expert testimony is needed to prove these elements. But there are times when an attorney's duties are so basic, that a court may decide as a matter of law, that an expert report is not needed. This exception is often called the common knowledge exception.

Cases within the exception mean the actions being contested are so common, that a regular juror can understand a duty has been breached by the attorney. In determining whether the affidavit is needed according to New Jersey's statute, a court should determine if the facts supporting the claim require proof of a deviation from the attorney's professional standard of care. If proof is required, then the affidavit is needed unless an exception applies. Common knowledge legal claims glean any real additional support from expert testimony which is why the exception was created. Categories of such cases include failing to investigate a claim, or initiate an action before the statute of limitations expires.

Despite the defense raising issues which would have been outside the common knowledge exception, the court believed no affidavit was necessary. The purpose of the certificate is to act as a barrier to merit less claims based on professional duty. Thus, when a claim is within common knowledge, there is no such barrier, since it is patently obvious that if true, there was a breach. The court believed there was a showing of merit by pleading a cause of action based on failure to file the claim, which is within the spectrum of common knowledge. The court cautioned that it was important to provide affidavits in all malpractice trials, even where they do not intend to rely on expert testimony.

This case while acknowledging that legalese is not a language exclusively for lawyers should provide incentive for certificates of merit to always be filed. It is indicative of defense strategy in at least this case, that by not filing, it is another avenue whereby a defendant may attack the claims of a plaintiff. When a judge puts a discretionary sentence in an opinion such as the one above, it is important to understand that it serves more akin to a highly recommended idea.

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