Cases
Appeals: Johnson v. McClellan, 468 N.J. Super. 562 (App. Div.), cert. denied, 249 N.J. 76 (2021). Jack was retained by a prominent law school to represent on appeal one of its professors who had been charged with the unauthorized practice of law, which resulted in the Trial Court entering a Judgment against the professor for hundreds of thous
s of dollars, including treble damages
attorneys' fees because of his acceptance of a referral fee in a malpractice case. The plaintiff argued,
the trial Judge found, that the professor violated New Jersey's Criminal Statute for the unauthorized practice of law. Jack was retained to brief
argue the appeal. The Appellate Court reversed the Trial Court, reversed the finding that the professor engaged in the unauthorized practice of law,
reversed the Trial Court's Judgment which had been entered against the professor for treble damages
fees. The Supreme Court denied plaintiff's Petition for Certification. This decision could spare others from criminal prosecution under New Jersey's Criminal Statute related to the unauthorized practice of law.
Schwartz v. Cooper Levenson, 251 N.J. 556 (2022). Jack argued before the New Jersey Supreme Court in this precedent-setting case in connection with whether the New Business Rule constitutes a per se bar on all lost profits claimed by new businesses. This opinion applies in any type of case in which a new business is making a claim for lost profits. The Supreme Court agreed with Jack's argument that if the Court intended to amend the rule, then they should follow the New York
Illinois rule, which provides that such claims must be proven by reasonable certainty. Jack convinced the Supreme Court to apply New York
Illinois law to find that, with regard to a new business, the reasonable certainty st
ard applies to claims for lost profits. This decision will apply to all cases in which a new business is making a claim for lost profits. The Supreme Court ruled, pursuant to Jack's argument, that Trial Courts must now 'carefully scrutinize' a new business' lost profits claim,
should bar that claim unless it can be proven with reasonable certainty.
Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310 (1995). This case is a precedent-setting case in New Jersey juris prudence. Jack successfully argued before the New Jersey Supreme Court that the Entire Controversy Doctrine applied to attorneys
law firms. This case is regularly cited in opinions by the Appellate Division
the New Jersey Supreme Court regarding the application of the Entire Controversy Doctrine.
Lynch v. NJ Education Association, 161 N.J. 152 (1999). Jack successfully argued in the New Jersey Supreme Court on behalf of an editor, in a public figure defamation case, that the plaintiff, a State Senator, was a public official
public figure. The plaintiff argued that the campaign literature was defamatory, including an article entitled 'Boss of Bosses,' which was published in a local newspaper. The Senator alleged that the advertisement described him not merely as associated with organized crime, but as its top official. The Supreme Court held that the statement in the newspaper was not defamatory. The Supreme Court also held that the facts in the newspaper advertisement that the Senator had been a partner
an officer in three mob-owned companies,
had mobsters as business partners
clients, did not support the assertion that the Senator was the boss of bosses of the mafia. The Court found that readers of the newspaper articles would underst
the statements to be hyperbole
name-calling, emanating from a rough-
-tumble political campaign. The Court found that the Senator's proofs did not demonstrate that a jury could find by clear
convincing evidence that the editor published the statements with actual malice.
2820 Mt. Ephraim Ave. v. Brown, A-2694-19/A-2699-19 (App. Div. July 13, 2021). Jack successfully argued pre-trial Motions for Summary Judgment in the Superior Court of New Jersey, Law Division, Camden County, in a $10,000,000 tortious interference
defamation case filed on behalf of investors against an attorney
bank counsel arising out of a multi-million dollar loan for a commercial l
transaction. The allegations against the attorney included claims of sl
er for allegedly calling the plaintiff a 'wannabe gangster' in front of a potential investor, as well as a claim for tortious interference with prospective economic advantage for a contract that plaintiff entered into with the investor. The Trial Court granted the Motions,
found that calling plaintiff a 'wannabe gangster' was name-calling,
not actual defamation. On appeal, the Appellate Division affirmed the Trial Court's holding,
held that the statement 'wannabe gangster' does not constitute sl
er per se because it did not impute a criminal offense,
did not necessarily assign the plaintiff a characteristic that was incompatible with his business or trade as an attorney
accountant. The Appellate Division agreed with the Trial Court that the statement fell within the litigation privilege. The Appellate Division affirmed the Trial Court's Order which granted the attorneys' Motion for Summary Judgment because the defamation claim was barred by the litigation privilege.
Camden Iron & Metal, Inc. v. Klehr Harrison, 384 N.J. Super. 172 (App. Div., certif. denied), 187 N.J. 83 (2006). This is a seminal case in New Jersey in which Jack successfully appealed the decision of the trial court. The Appellate Division ruled that New Jersey courts do not have the authority to regulate attorney conduct in Pennsylvania simply because the attorneys are admitted in New Jersey
have offices in New Jersey. Also, the court ruled that forum non conveniens Motions for Disqualification must be filed in the jurisdiction where the underlying litigation is pending. The court also ruled that the Rules for Professional Conduct do not provide a basis for a legal malpractice action. The New Jersey Supreme Court denied plaintiff's petition for certification.
Morris Properties, Inc. v. Jonathan Wheeler, et al., A-2653-20 (App. Div. February 28, 2023). Jack successfully argued on appeal, in a legal malpractice action arising out of an underlying complex insurance coverage litigation in the United States District Court, that in legal malpractice actions, proximate cause requires an initial determination of cause in fact, which requires proof that the result complained of probably would not have occurred but for the negligent conduct of the defendant. Also, Jack made the point that a plaintiff must then present evidence to support a finding that the defendant's negligent conduct was a substantial factor in bringing about plaintiff's injury, even though there may be other concurrent causes of the harm. In addition, Jack successfully argued that a plaintiff must show what injuries were suffered as a proximate consequence of the attorney's breach of duty, ordinarily measured by the amount that a client would have received but for the attorney's negligence. Also, the client must have sustained actual damage that is real, not merely speculative. It is the plaintiff's burden to show what injuries were suffered as a proximate consequence of the attorney's breach of duty. In Morris Properties, at the trial level, Jack argued that plaintiffs did not present expert testimony to demonstrate that the plaintiff would have prevailed in its coverage case against the carrier, or would have received a greater settlement had the attorneys met the st
ard of care. The Appellate Division agreed that plaintiffs failed to establish proximate cause as a matter of law,
that expert testimony was necessary to prove proximate causation
damages. Plaintiffs did submit an expert report.
Borough Construction, Inc. v. Lenape Reg. High School Dist. Bd. of Ed. v. DiGeronimo/Mikula Assoc., 445 Fed. Appx. 498 (3d Cir. 2011). Jack Slimm
Dante Rohr had the privilege of representing the nationally recognized expert in the design of running tracks in an action in the United States District Court for the District of New Jersey. Our client developed the st
ards used in the industry for running tracks, including those at the Olympic level where he has designed running tracks. In the litigation, the school district brought suit against numerous contractors, designers, etc. for defects in the high school. The co-defendants settled at mediation leaving in the case the general contractor for his retainage,
our client, who designed the running track. The school district alleged, through their expert, that the running track was not properly certified, was not properly built,
was not certifiable. Therefore, the school district had a new track installed at considerable expense. This track was a 'double bend' or 'broken-back' configuration. (You might recall seeing that design when you watched the Olympics on television). In any event, the case involved some courtroom drama because the school district took the risk of re-calling their expert engineer on rebuttal. When he was re-called, he changed his opinion. When asked by the Federal judge why he changed his testimony, the plaintiff's expert testified, 'I was confused by Mr. Slimm's cross-examination.' That cross-examination came through the geometric calculations which were done at counsel table by New Jersey's resident electrical engineer, Dante Rohr, who gave Jack the numbers on the fly so that Jack could cross-examine plaintiff's expert. It worked,
the expert was discredited. The court, after findings of fact
conclusions of law, rejected the opinions of plaintiff's expert,
entered Judgment in favor of our client dismissing all claims.
Shapiro v. Rinaldi, A-1753-14T4 (App. Div. March 18, 2016). Jack successfully argued at the Trial Court
on appeal that the law firm had no liability for the actions of the non-lawyer assistant to advise clients with respect to their legal rights, including advising clients of deadlines to file a claim. Jack was successful in arguing that the plaintiff's expert's reliance on the Rules of Professional Conduct was not sufficient to make out a cause of action for legal malpractice. Also, this opinion is significant because, in the same, the Appellate Division held that, with solo practitioners, the attorney took responsibility to ensure that his secretary/paralegal complied with his professional obligations. In addition, the Appellate Division rejected the plaintiff's claim that the attorney should be held vicariously liable for his secretary's oversight. Significantly, the Court held that the attorney's secretary was not an attorney,
owed no duty to the plaintiff.
Broadway Family Practice v. Willitts (Successful defense of appeal in App. Div. under Docket No: A-3700-04T1) (App. Div. 2005). In this Appellate Decision argued by Jack, the court held that the Entire Controversy Doctrine does apply to bar legal malpractice if the attorney commits malpractice in the course of h
ling a case
the client becomes aware of the facts supporting the potential claim while the case is still pending. The malpractice action against the attorney must be joined with the underlying lawsuit, or it will be barred by the Entire Controversy Doctrine. The Entire Controversy Doctrine applied in that case because in April of 1997, when the underlying Chancery Division action was pending, the law was such in New Jersey that the attorney could have
should have been joined as a defendant pursuant to Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310 (1995), a case which Jack successfully argued in the New Jersey Supreme Court.
Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div. 2010). Jack successfully argued in the Appellate Division in a complex legal malpractice action arising out of the allegedly negligent omissions made by a patent attorney who had worked, in succession, at two law firms. The Complaint alleged that the attorney failed to assure that certain renewal fees necessary to maintain plaintiff's patent were paid to the United States Patent & Trademark Office (the 'USPTO'). Consequently, the patent expired,
plaintiff was unable to get it reinstated. As a result, plaintiff claimed that it suffered economic harm. In this precedent-setting case, the Appellate Division held that under New Jersey's Affidavit of Merit Statue, N.J.S.A. 2A:53A-26 to -29, law firms are 'licensed persons' for which an Affidavit of Merit is required under the Statute, N.J.S.A. 2A:53A-27. The Court held that it would be anomalous to allow a plaintiff to evade the Affidavit of Merit requirement by suing only the professional entities (here the law firms),
not the principals, partners, shareholders,
employees of those firms who actually provided the professional services in question. In addition, the Court rejected the plaintiff's argument that the Complaint fell, at least in part, outside the scope of N.J.S.A. 2A:53A-27 because it substantively asserted various other causes of action in additional legal malpractice. The Court found that the other claims were 'simply labels for a cause of action, the essence of which is one sounding in legal malpractice. Accordingly, the Affidavit of Merit obligation applied to the entire Complaint.
Soult v. Mattioni, Ltd., A-A-2619-07T2 (App. Div. February 20, 2009), Jack successfully argued at the trial level,
then on appeal, that attorneys h
ling toxic tort cases do not have an obligation to shop for a new expert when they receive an unfavorable opinion. In this key case, the Appellate Division held that there is nothing to support a plaintiff's claim
a plaintiff's expert opinion that it is the st
ard to continue to shop for a favorable expert once unfavorable reports are rendered. The Court made the point that without liability, damages are pointless. This is the only Appellate Division case on this issue. Attorneys are not required to shop around for a better or different expert in order to prove liability. Once the attorney receives an opinion from a competent expert (whether on the defense side of the plaintiff side), there is no continued duty to shop for a favorable expert in an attempt to get a better or different opinion.
Merrick Wilson
Presidential Hill, LLC
Pennington Hills, LLC v. Robert A. Gladstone, Esq.
Charles J. Casale, Jr., Esq., A-1774-11T1 (App. Div. May 17, 2013). In this case, Jack successfully argued at trial,
on appeal, in this multi-million dollar l
use planning matter, where plaintiffs brought a legal malpractice claim against the defendant zoning counsel, who was retained to challenge Hopewell Township's Zoning Ordinance. In the case, the plaintiff/developer argued that the attorney failed to Subpoena NJDEP personnel to testify at trial that the Town used improper methodology to support its conclusions as to the availability of water for residential development on the property. The Appellate Division held that it was speculative for plaintiffs to argue that the DEP would have provided a letter opinion or testified at the trial. It was purely speculative as to what the DEP engineer would have testified to at trial,
whether it would have been favorable to the plaintiffs' position.
Twp. of Gloucester v. Maryl
Casualty, 702 F. Supp. 1126 (D. N.J. 1987). Jack was lead counsel in this environmental coverage case. This was the first case in New Jersey to establish the doctrine of known risk in Law Division cases. The case involved $100 million in damages to the township property.
Monsanto v. Lacy's Express, 5 F.3d 1490 (3d Cir. 1993). Jack argued as lead counsel
was successful in obtaining a dismissal based upon New Jersey's entire controversy doctrine.
Trivedi v. Martin-Simmonds, A-3166-05T5 (App. Div., May 14, 2007). The Appellate Division affirmed an order for Summary Judgment obtained by Jack in a legal malpractice action against Allstate's defense counsel, where there was an underlying excess verdict. Jack successfully argued that the opinions of plaintiffs' experts were net opinions. The Appellate Division found that expert testimony is necessary in professional malpractice cases in order to establish both the applicable st
ard of care
whether damages were proximately caused by the alleged negligence of the attorney. This case is significant because in it the Appellate Division affirmed the order for Summary Judgment granted by the trial court in favor of the defense attorneys appointed by All State to defend their insured in the underlying litigation. Unfortunately, there was an excess verdict, which resulted in a legal malpractice action. Nevertheless, Jack was successful
the Appellate Division ruled that plaintiffs' experts referenced no judicial or statutory authority establishing the existence of a st
ard of care for defense attorneys when the client's monetary exposure over the policy limits places the client in jeopardy of substantial excess verdict.
Torban v. Obermayer Rebmann Maxwell & Hippel, LLP, A-3660-05T3 (App. Div., June 27, 2007). Jack obtained a dismissal at trial, which was affirmed on appeal, on behalf of the law firm in connection with duty of attorneys regarding post-mortem tax planning. The case was decided pursuant to the Estate of Fitzgerald v. Linnus, A-6626-98T3 (App. Div. Jan. 22, 2001). This matter was affirmed on appeal. Jack was successful in arguing that the attorneys had no duty to the testator's son for post-mortem tax planning. The Court found that the estate plan drafted by the attorneys would have been affected had the testators followed the attorney's instructions regarding retitling certain assets. This case holds that attorneys retained to counsel an executor during administration of an estate are under no duty to advise regarding post-mortem estate planning options.
Liberty Travel v. Friedman & Siegelbaum, A-4136-07T1 (App. Div. July 14, 2010). In Liberty Travel, the legal malpractice action arose from a class action suit filed in Pennsylvania, arising out of claims for retaliatory termination,
violation of the Pennsylvania Minimum Wage Act. In the malpractice action, Liberty claimed that the attorneys failed to obtain an extension of time to Answer the employee's Complaint,
that a default was entered
not vacated, resulting in a Judgment of $1,406,117.58 against Liberty. The Court held that under the case-within-a-case Doctrine, Liberty was legally liable in the class action suit. Although there were deviations from the st
ard of care, nevertheless there was no causal connection under Froom v. Perel, 377 N.J. Super. 298 (App. Div.), certif. denied, 185 N.J. 267 (2005).
Chulsky v. Hudson Law Offices, 2011 U.S. Dist. LEXIS 29781 (D.N.J. March 22, 2011). In this case of first impression, the Court granted the Motion to Dismiss with respect to the New Jersey Consumer Fraud Act
the Truth In Consumer Contract Warranty & Notice Act claims brought by a debtor against a collection attorney arising out of the attorney's purchase of
attempts to collect a consumer debt. The Court held that the New Jersey Consumer Fraud Act does not reach the debt collection activities of a debt buyer of defaulted credit card debt. It found that a debt buyer, while subject to regulation under the FDCPA
, perhaps, New Jersey's Collection Act or Criminal Statutes, is not a 'seller' whose subsequent performance falls within the ambit of the NJCFA.
Morse v. Kaplan, 2011 U.S. Dist. LEXIS 61201 (D.N.J. June 8, 2011). In this Fair Debt Collection Practices Act claim against a collection attorney, the Court granted Summary Judgment when suit was brought stemming from two debt collection letters written by the attorney to the debtor.
ACBB-BITS v. Clancey v. Lombardo, A-2734-09T1 (App. Div. November 21, 2011). Jack successfully defended an appeal in a complex economic dispute between a property owner, a commercial l
lord, a real estate broker,
the attorney who represented the plaintiff-owner in Lease negotiations for an office building in New Jersey. In the Law Division, Jack was successful in obtaining an Order for Summary Judgment. After the other defendants obtained dismissals, the matter was appealed. The Appellate Division agreed with Jack's argument that the Third Party Complaint filed by the real estate broker against the attorney did not state a claim because the broker
the attorney could never be deemed joint tortfeasors under New Jersey's Joint Tortfeasors Contribution Law. Their alleged torts were separate in nature
time. The broker could not claim that he relied upon any representations of the attorney for the owner, nor that his firm represented them. New Jersey law does not provide a cause of action under these circumstances which the broker could pursue. Therefore, although the case was rem
ed in connection with the owner's claims against the broker for tort, breach of contract,
consumer fraud, the Appellate Division affirmed the Judgment.
