The Suit Within A Suit Component of Legal Malpractice Claims in New Jersey

If an attorney in New Jersey fails to file an action within the statute of limitations, or otherwise fails to meet other time-bar requirements, the client who is victimized by the attorney’s negligence must establish that he/she would have obtained a monetary recovery in the underlying case, as well as the amount of the recovery. The so-called "suit within a suit" concept in legal malpractice cases was conceived to determine what would have taken place in the underlying action but for the attorney’s malpractice.

The concept has been subject of significant complaints. The principal reason is that the legal malpractice claimant does not have access to the same quality and quantity of evidence that could have been used to prosecute the underlying action because of the passage of time. There are occasions, however, when the court will side-step the "suit within a suit" approach and allow a legal malpractice claimant to establish the anticipated results of the underlying case with the use of expert testimony which is usually in the form of an attorney or other expert who is familiar with the subject matter of the underlying case. This alternative is a less complex and a more cost efficient method of assisting a jury to come to terms with the convoluted concepts that are usually associated with cases of this nature.