Legal Malpractice Cases In New Jersey: The Need for An Expert Witness

A legal-malpractice case is nothing more than a lawsuit based on the negligence of an attorney. The elements of a legal malpractice case are: (1) the existence of an attorney-client relationship; (2) the breach of a duty owed to the client by the attorney;(3) damages sustained by the client; and (4) a causal relationship between the damages and the negligence of the attorney.

Ordinarily, expert testimony is required in all legal malpractice cases as well as other professional malpractice cases. That is so because the duties a lawyer owes to a client are not know to the average juror. Indeed, the law in New Jersey states rather clearly that within sixty (60) days from the date a professional malpractice lawsuit is filed, the claimant must file an affidavit signed by an appropriate expert confirming that the targeted professional was negligent, and failing that the lawsuit must be dismissed.

Where, however, the issues are within the ordinary knowledge and experience of an average person, an expert witness may not be required. The "Common Knowledge Doctrine" has been used in a number of diverse situations, including where: (1) an attorney failed to record a bond and mortgage; (2) an attorney failed to file a suit before the running of the statute of limitations; (3) an attorney failed to conduct an appropriate investigation in a personal injury claim; (4) a physician left a needle in a patient’s chest; (5) a chiropodist accidentally cut a diabetic’s toe; (6) a dentist extracted the wrong tooth; (7) a radiologist failed to immediately advise a patient of a possible lung tumor detected on an x-ray; and (8) a physician applied a caustic liquid to a patient causing severe disfiguration.