Tietjen v. Mazawey is a key New Jersey case in reminding legal malpractice practitioners that expert truly means expert. It is not enough to simply have another attorney certify that an attorney's conduct deviated from the typical standards of care. What is necessary from the expert is a detailed report, which supports the expert's conclusion.
In Tietjen, the dispute with the original attorney Mazawey, centered on a property company. Wainwright property was formed in June 2005, for the purpose of acquiring property in Newark. Once Newark approved a contract with Wainwright, the Wainwright interests needed to be disbursed to a different company in order to avoid an anti-flipping clause in the redevelopment agreement. The new company was called Con Ro construction, and a contract was drawn up to buy the interest in Wainwright. While the contract was being drawn up, Con Ro executed a legal service agreement with the defendant Mazawey. On February 8, 2006, Mazawey reviewed the contract and issued a written statement of concerns. Furthermore, he noted the end of the due-diligence period, and advised Tietjen against moving forward.
A second correspondence followed on March 1, 2006 in which defendant reiterated his stance concerning the contract, and the ending of the due diligence period. He further stated that if Tietjen accepted the contract, it was with a full understanding of the defendant's objections. At the conclusion of the due diligence period, Con Ro failed to close, and the selling party considered them in default, and attempted to enforce the terms of the contract. These terms included financial penalties. In late May, 2006, the parties ended their representation agreement. As a result of the penalties, the plaintiff's alleged malpractice based on defendant attorney's perceived multiple failures.
As required the plaintiffs came forward with an expert report. This report stated simply the failures alleged, and that Mazawey had deviated from the standards of practice governing legal counsel. The defendants responded by asking for summary judgment, which allows a case to be decided based on the pleadings. The main reason summary judgment was requested was because the defendants believed the opinion was not enough. To go forward based on expert testimony; it must be more than "net testimony." Net testimony is a conclusion unsupported by facts.
The Court stated that, experts must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable. When an expert opinion is unsupported by factual evidence it is inadmissible. If it is inadmissible, and is the primary support for a plaintiff's cause of action, then the cause of action will probably lose at the summary judgment stage. The other problem with reliance on net opinions is that they fail to provide a causal connection between an act or incident complained of and the injury or damage allegedly resulting there from.
The appeals court applied these rules to the present case, and on balance found that the expert report presented little of the requirements laid out above. The report did not draw a proximate cause connection between the alleged negligence and resulting damages. It also failed to identify deficiencies in the defendant's conduct, why these deficiencies deviated from the standard of care, and how that deviation caused plaintiffs' damages. Finally, the report concluded the defendant attorney committed malpractice because he failed to comply with timeframes set forth in the contract, yet did not identify what deadline was missed. Absent the identification of an act or omission that failed to conform to an articulated professional standard, resulting in damages, the report was a bare conclusion of professional negligence.
The most important part of this case is that a certification for malpractice actions should read like a typical expert report. According to the Court, a certification should identify the ways in which a defendant attorney deviates from conduct. Second, the report should note how the specific act failed to conform to an articulated standard. Finally, the report should identify the causal connection between a deviation from the standards of care and damages.