New Jersey Revises Jury Charge on Proximate Cause in Legal Malpractice—Based on Case Handled by Jack Slimm and Jeremy Zacharias
A recent update to New Jersey’s Model Civil Jury Charges marks a significant development in legal malpractice law—and directly reflects the work of attorneys in our Mount Laurel, New Jersey office, Jack Slimm and Jeremy Zacharias.
This update underscores the impact of our firm’s work in shaping New Jersey jurisprudence and reinforces the importance of expert testimony in these complex legal malpractice matters. Attorneys litigating legal malpractice cases should review the revised charge closely and adjust their litigation strategies accordingly.
As of January 2025, the New Jersey Supreme Court Committee on Model Civil Jury Charges has revised Charge 5.51B – Proximate Cause in Legal Malpractice Involving Inadequate or Incomplete Legal Advice (originally approved in 1997). The revision stems from the Appellate Division’s decision in Morris Properties Inc. v. Wheeler, 476 N.J. Super. 448 (App. Div. 2023), a complex case successfully argued by Jack, and briefed by Jeremy, where the Appellate Division clarified the pivotal role of expert testimony in establishing not only proximate cause, but also damages in legal malpractice claims involving alleged inadequate legal advice.
In Morris Properties, the court held that to establish the proximate cause element of the legal malpractice claim, the plaintiffs had to prove that the defendants’ alleged failure to hire an expert in the underlying case, “communicate with the client,” or properly prepare the plaintiffs for a deposition were substantial factors causing the plaintiffs’ damages. Without expert testimony demonstrating that the plaintiffs would have prevailed in the underlying litigation in federal court or would have received a greater settlement had the defendants met the standard of care, the plaintiffs’ legal malpractice claim failed as a matter of law.
The Appellate Division agreed with the trial court that the plaintiffs had not established proximate cause as a matter of law and that expert testimony was necessary in this case to prove proximate causation and damages. It held that only an expert could show that the plaintiffs would have succeeded in obtaining a better result at trial had the defendants not committed the alleged breaches of the standard of care. The expert did not opine that had the defendants met the standard the plaintiffs would have prevailed at trial or would have obtained a better settlement given the facts of the underlying coverage case. In addition, the plaintiffs’ expert never opined about the fair settlement value of the underlying coverage case, nor about what the reported damages were.
The case was especially significant because the Appellate Division rejected the plaintiffs’ argument that summary judgment was not appropriate because they could have proceeded without expert testimony by filing a “suit within a suit” procedure at trial. The Appellate Division held that such an argument, which, when filed, would have the effect of barring summary judgment in nearly every legal malpractice case and confused a procedural trial framework with the plaintiffs’ prima facie burden. That procedural choice does not, according to the Appellate Division, relieve the plaintiffs of their substantive prima facie burden to prove proximate cause. That is why this decision is significant and has now been recognized by the jury charge committee—which includes sitting judges—as the controlling law on the issue.
Legal Update for Lawyers' Professional Liability - April 23, 2025, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved.