A recent unpublished New Jersey Appellate Division decision provides useful guidance concerning two recurring issues in legal malpractice litigation:
(1) what an expert must include to avoid the net opinion rule, and
(2) what qualifications an attorney must possess to testify as a legal malpractice expert.
In Veras v. Estate of Adinolfi, Docket No. A-1326-24 (App. Div. Aug. 31, 2026), the Appellate Division reversed the exclusion of the plaintiffs' legal malpractice expert and, as a result, reversed summary judgment dismissing the malpractice action. The court also affirmed the admission of the defendants' legal expert even though his report did not cite a single rule, judicial decision, treatise, or prior jury verdict.
The malpractice action arose from the settlement of a medical malpractice case. Carlos Veras suffered significant complications following colon surgery and subsequently retained attorney Robert J. Adinolfi and his firm to pursue a medical malpractice claim. Adinolfi was a certified civil trial attorney and headed his firm's medical malpractice department.
After several years of litigation, Adinolfi recommended that Veras accept a $500,000 settlement. Veras later sued Adinolfi and his firm for legal malpractice, alleging, among other things, that Adinolfi recommended an inadequate settlement without first obtaining an independent medical expert's assessment of the underlying malpractice claim.
Both sides retained attorneys to provide expert opinions concerning Adinolfi's representation.
The plaintiffs retained Anthony P. Ambrosio, an attorney with more than fifty years of experience who had served as an expert in hundreds of legal malpractice cases. The defendants retained E. Drew Britcher, a certified civil trial attorney with approximately forty years of experience and extensive experience trying medical malpractice cases.
The trial court barred Ambrosio from testifying, concluding in part that he lacked sufficient medical malpractice experience and that his opinions constituted inadmissible net opinions. Because the plaintiffs were then left without a legal malpractice expert, the court granted summary judgment dismissing their case. The Appellate Division reversed.
The Appellate Division first rejected the trial court's conclusion that Ambrosio was insufficiently qualified because he was not a certified civil trial attorney and had considerably less experience handling medical malpractice cases than Adinolfi.
Under N.J.R.E. 702, an expert may qualify based on "knowledge, skill, experience, training, or education." The rule is construed liberally in favor of admitting expert testimony.
Importantly, the Appellate Division held that there is no requirement that a legal malpractice expert possess the same professional certification as the defendant attorney.
The court also rejected the notion that Ambrosio needed extensive experience trying medical malpractice cases to evaluate the defendant attorney's conduct. The central alleged negligence was that Adinolfi recommended settlement without first obtaining an adequate medical expert evaluation of the underlying claim. As the court explained, an attorney's duty when recommending settlement "is not unique to medical malpractice litigation, but is applicable to any field of litigation."
Differences between an expert's qualifications and those of the defendant attorney generally go to weight and credibility, rather than admissibility. Those differences may be explored through cross-examination and ultimately evaluated by the jury.
The decision also provides useful guidance concerning New Jersey's net opinion rule. Legal malpractice requires proof of a duty, breach of that duty, proximate causation, and actual damages. The expert's opinion concerning the attorney's conduct must be based upon standards accepted within the legal community.
An expert cannot simply announce a conclusion. Under N.J.R.E. 703 and the net opinion rule, the expert must provide the "why and wherefore" supporting the opinion and ground the opinion in facts, data, professional experience, or other appropriate sources.
The expert must adequately identify and explain the applicable standard of care, the alleged deviation, and the causal connection to the claimed loss. However, the expert is not required to establish those concepts by citing a particular category or type of legal authority.
The plaintiffs' expert, Ambrosio, supported his opinions with several sources, which the defense categorized as conclusory. His report referenced the Rules of Professional Conduct, New Jersey decisions concerning an attorney's obligations when advising a client about settlement, articles regarding comparable verdicts, and his professional experience. He then explained why, in his opinion, Adinolfi should have obtained an independent expert assessment before recommending settlement and why that failure affected the value of the plaintiffs' recovery. The Appellate Division concluded there was sufficient support for the opinions to permit their admission.
The court's treatment of the defense expert, E. Drew Britcher, is also significant. Britcher's report contained "not a single citation to a rule, legal precedent, or prior jury verdict." Instead, he relied principally on approximately forty years of experience handling medical malpractice cases, including nearly one hundred trials, and participation in legislative proceedings concerning medical malpractice litigation.
The Appellate Division nevertheless affirmed the admission of his opinions. The court concluded that Britcher's testimony establishing his extensive professional experience provided a sufficient foundation for his opinions. The absence of citations to external authorities did not convert those opinions into inadmissible net opinions. Challenges to the credibility or strength of his conclusions could instead be addressed through cross-examination.
A legal malpractice expert must clearly articulate the applicable professional standard, explain how the defendant attorney complied with or departed from that standard, and address how the attorney's conduct relates to causation and the claimed damages. The expert must explain the factual and professional basis for those conclusions rather than merely state them.
But Veras confirms that there is no rigid requirement that an expert support those opinions with citations to case law, ethics rules, treatises, or similar authorities. Extensive professional experience can provide an adequate foundation under N.J.R.E. 702 and 703.
Likewise, New Jersey does not impose a "same specialty" requirement on legal malpractice experts comparable to the statutory requirements governing medical malpractice experts. An attorney with appropriate knowledge and experience may be qualified even though the expert does not share the defendant attorney's certification or have equivalent experience in the precise underlying practice area.
Questions concerning the basis or authority supporting an opinion and differences in the expert’s experience or specialization should be left to the consideration of the jury to determine the “credibility, weight and probative value of the expert’s testimony,” not its admissibility.
Because Veras is an unpublished Appellate Division decision, it is not precedential.
Attorney Advertising. This article is for informational purposes only and does not constitute legal advice.
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