Attorney’s failure to assert claim in the underlying case is not malpractice when the plaintiff could not have recovered had claim been asserted.

A New Jersey appeals court affirmed the lower court’s finding that, while there was “at least a genuine issue of material fact as to whether [d]efendant breached a duty to [p]laintiff” . . . “there was insufficient evidence to establish that ‘any such breach was the proximate cause of [p]laintiff’s damages.’” The plaintiff alleged that the defendant attorney “should have known” that the plaintiff “had a substantial claim for quantum meruit” and failed to assert the same at trial in the underlying action. The trial court found that the plaintiff had no reasonable expectation that the outcome of the underlying action would have been different had the defendant asserted the theory of quantum meruit because the proofs, which were reviewed below, failed to establish the elements of such a claim. In light of the trial court’s determination, the appeals court found that the plaintiff “cannot demonstrate that he suffered damages” nor that the defendant’s “alleged malpractice was a ‘substantial factor’ contributing to any alleged damage.” Therefore, even when counsel may have breached a duty by failing to assert a claim at trial, counsel cannot be held liable when the outcome of the underlying case would not have been different had the claim been asserted.

_{Case Law Alerts, 1st Quarter, January 2016}

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