New Jersey Legal Malpractice Blog : New Jersey Legal Malpractice Lawyer & Attorney for Professional Liability Insurance Issues in Morris County, NJ

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Hedinger & Lawless, LLC v. Betal Enterprises, Inc.

Appellate Division Docket No. A-4797-09T3

Decided March 10, 2011

OPERATIVE FACTS:

This is a 31 page Opinion. Roughly 20 pages are devoted to the operative facts, and I despair of my skill in cutting to the chase to summarize them.

Suffice it to say that Hedinger & Lawless undertook the representation of many matters for an incorporated individual. These representations proceeded with stops and starts because the individual, through his corporations, was continually behind on the Hedinger bills.

After a lengthy delay in a case in which the client had suffered a default, a default judgment was eventually entered.

The alleged malpractice centered around the failure to file an Answer and an 85 page Third Party Complaint which was prepared but never filed. Seemingly, everyone agreed that the Answer would have been fruitless, the client would eventually have lost on Summary Judgment, and that the complicated Third Party Complaint had no merit either. These pleadings, if filed, would seemingly only have delayed the inevitable.

The client decided to pursue a malpractice claim in response to the Hedinger law firm’s Complaint for outstanding legal fees. The legal malpractice expert testifying on behalf of the Counterclaimant and against the law firm was William H. Michelson, Esq..

The law firm successfully moved at the Trial Court level for judgment on two bases. The first was that although the firm represented the individual and his various corporate entities, it did not represent the corporate entities in the particular case which caused, allegedly, the damage to the client. Thus, no attorney/client relationship existed as per the Trial Court.

The second and most significant basis was that even with the report of Mr. Michelson the claimant had failed to establish a prima facia case of legal malpractice.

CASE HOLDING:

The Appellate Court sustained the result.

On the question of whether or not there was an attorney/client relationship, the Appellate Division said that, giving all proper inferences to the claimant, there was a small genuine issue of material fact which precluded the entry of Summary Judgment.

However, the Appellate Division found that the Michelson report was a net opinion. Mr. Michelson failed to establish negligence and causal link. Additionally, there were no facts upon which a damage claim could be based.

Judgment of the dismissal was affirmed on this basis.

COMMENT:

One of my favorite Dorothy Parker quotations is as follows:

“This is not a novel to be tossed aside lightly. It should be thrown with great force.”

This is exactly what the Court did to the Michelson report.

Here are a few of the things the Court had to say about the Michelson report:

“Not only was Michelson’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 cannot support a claim of breach [of standard of care]”

“Moreover, Michelson simply offered general ways the case could have been handled differently, such as assigning centennial some of the third party claims, without explanation or analysis of the ‘whys and wherefores’.”

“Additionally, Michelson’s report is essentially comprised merely of his ‘personally held views’, which are insufficient to withstand net opinion challenge.”

“Michelson’s bare conclusions as to causation and damages are without factual support in the record, thus constituting an inadmissible net opinion under Froom. His opinion that had Hedinger file an Answer in the centennial action, Ostojin’s bankruptcy proceeding would not have been necessary, is simply ‘conjecture’, which under Sommers is insufficient to demonstrate proximate cause.”

In other words, the Michelson report contained virtually every fault you could find in a net opinion.

LESSONS TO BE LEARNED:

First, let me compliment Elliott Abrutyn and Tom Rantas. Elliott, for my money, is one of the best lawyers in the state. His track record is incredibly good, and his more junior colleagues such as Tom Rantas here are following in his footsteps. When you see Elliott on a case, you will know that he will press every legitimate button without beating the case to death unnecessarily.

My next lesson is that if you undertake a Plaintiff’s case you should be very leery. There are any number of experts out there who are willing, for a fee, to testify to virtually any nonsense. This is a case in point.

If you use one of those lawyers, it does not serve you well. You should consult a solid expert and if that expert tells you that you have no case you ought to listen before wasting your time and your client’s money to obtain a report like this one which is going to be totally disregarded by the Courts.