The Betal parties/appellants appeal from summary judgment dismissal by the law division of their legal malpractice complaint against Hedinger & Lawless, LLC. The Betal parties/appellants argue there was, at a minimum, a genuine issue of material fact as

The trial court found the Betal Parties/Appellants' expert's opinion that Hedinger should have filed an answer, which he acknowledged was not meritorious, and later file a third-party complaint, which would buy time for the Betal Parties/Appellants to obtain funds for a potential settlement, to be "net opinion" because it was not based on a deviation from any particular standard of care and was merely a "matter of strategy" about which attorneys can routinely differ. The Appellate Court agreed and found that not only was the Betal Parties/Appellants' expert's opinion not based on standards accepted by the legal community, but his strategy of "delay for the sake of delay" is diametrically opposed to the duties of an attorney set forth in Rule 1:4-8 and thus could not support a claim of breach. Moreover, the court found that the Betal Parties/Appellants' expert simply offered general ways the case could have been handled differently, such as assigning some of the third-party claims, without explanation or analysis of the "whys and wherefores." Additionally, the Betal Parties/Appellants' expert's report is essentially comprised merely of his "personally held views," which are insufficient to withstand a net opinion challenge. The court also found that the Betal Parties/Appellants failed to file a cross-motion asking the court to affirmatively find that the failure to file an answer is by its very nature evidence of Hedinger's malpractice. The Appellate Court "decline to consider issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.' "

Case Law Alert - 3rd Qtr 2011