April 2003, No. 1

April 2003, Vol. I, No. 1

Do you need a doctor's certification for all verbal threshold cases? Surprisingly, yes. In Thomasson v. McQuown, 358 N.J. Super. 64 (Law Div. 2003), the trial court found that the certification requirement extends beyond type 6, i.e., permanent injury, and applies to type 3 "significant disfigurement or significant scarring." The court's decision implies that certifications are required for death, dismemberment, displaced fracture, and loss of fetus – do defendants really need a certification that someone is dead? Moreover, if someone instantaneously dies or loses a fetus, there is no treating physician to sign the certification as required under the statute. An unnecessary decision that does not assist plaintiffs' or defendants' attorneys. Expect to see this case or one like it in the Appellate Division.

Score one for inmates. If you are representing an inmate in a §1983 claim involving the facility's failure to provide proper medical services, you do not need an affidavit of merit because the cause of action arises out of a constitutional right. See Seeward v. Integrity, Inc., 357 N.J. Super. 474 (App. Div. 2003). The constitutional right in such cases falls under the Eighth Amendment's "cruel and unusual punishment," and requires a showing of deliberate indifference. Thus, the Appellate Division explained that federal law preempts the affidavit of merit statute. In case you were wondering, the panel dismissed the case because the inmate was unable to show that the facility denied him any medical care.

Are legal malpractice claims designed to punish attorneys? According to the courts, the answer is yes. Although no reason or legislation exists to support treating lawyers differently than other professionals, the courts continue to impose fees and costs against lawyers who are found to have committed malpractice. In DiStefano v. Greenstone, 357 N.J. Super. 352 (App. Div. 2003), the Appellate Division confirmed the principles established in Saffer v. Willoughby, 143 N.J. 256 (1996). Namely, in legal malpractice cases involving personal injuries and contingency fee arrangements, (1) a plaintiff receives the entire award of damages, (2) the negligent attorney cannot keep any fee for the improper services, and (3) the negligent attorney is responsible for the fees and costs for the prosecution of the legal malpractice action. We can understand including the negligent attorney's fee, if any, in the damages because the attorney does not deserve a credit or offset for poorly performed work. However, the courts' rationale that the fees and costs in pursuing the action are "consequential damages" fails to consider that fees and costs are consequential damages in all negligence and professional malpractice claims, i.e., if not for the negligent doctor, the injured patient would not have pursued a claim. We do not have the English system, and a special category should not be created for lawyers unless the Legislature sees fit to make that the law.

Silent Nods Can Be Speech. The Supreme Court recently held that an employer's nodding agreement to his secretary's comment that an employee was fired because he was too old can be an adoptive admission under N.J.R.E. 803(b)(2). See McDevitt v. Bill Good Builders, Inc., 175 N.J. 519 (2003). Alas, the silent nod can be louder than the spoken word depending on the circumstances. A final word is needed to address how the Appellate Division's suggestion that the nod did not satisfy N.J.R.E. 803(b)(2) – how can that be when the rule expressly states that nonverbal conduct is sufficient to establish an adoptive admission?

TRIAL TIP: Jury Note-Taking v. Jury Questions. Trial attorneys need to be aware that Rule 1:8-8(b) and (c) distinguish between jury note-taking and questions because not all judges and attorneys are aware of how the rules apply. Rule 1:8-8(b) mandates that note-taking be permitted only if a party or attorney requests it. After hearing from both sides, the Court has the discretion and authority to grant or deny the request. Rule 1:8-8(c), on the other hand, provides the court with the sole decision of whether to permit the jury to ask questions. Part (c) also requires the court to hear from the attorneys before voir dire begins. Therefore, trial attorneys should make their record on these two new aspects of trials before the voir dire begins, especially given that many trial attorneys find that the questions are beneficial but that the note-taking can be distracting.

Ethics Tip: Attorneys must be careful when entering into a settlement on behalf of a plaintiff where the defendant requires the plaintiff's attorney to agree not to file any more suits against the defendant. Rule 5.6(b) of the ABA Model Rules of Professional Conduct prohibits an attorney from entering into a settlement agreement that prohibits her from future practice. As New Jersey's Rules of Professional Conduct may change in the immediate future, it would be wise to see if this rule is adopted so as to avoid any potential ethical problems.

Contributions. If anyone has an interesting case, quote, rule interpretation, ethical opinion, or civil-related story, please contact me so that we can continue to provide the Bar with this monthly update.

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