Andrew Rubin, Esq.

Immunity for legal malpractice experts: traditional rule could change

Expert witnesses play an important role in professional malpractice cases, particularly in cases involving technical knowledge that is not readily understandable to the average person, whether judge or juror. In legal malpractice cases, an expert witness can be used by the defendant to provide evidence of the reasonableness of actions or omissions that are alleged to be negligent.

Expert witnesses can be used on both sides in a legal malpractice cases, and in some cases the testimony of expert witnesses can be crucial in determining the issue of liability, giving rise to what is sometimes called a “battle of the experts.” Obtaining an experienced, knowledgeable, trustworthy and articulate expert is not always easy. Due to a growing trend in New Jersey of allowing litigation against so-called friendly expert witnesses, it may become more difficult. 

A friendly expert witness is one which is hired by a party to provide opinion testimony.  Traditionally, friendly expert witnesses were given immunity from civil liability in the event the case in which they testified was decided unfavorably. Courts in some states have moved away from that traditional rule. The question is still undecided here in New Jersey, but a couple recent cases have suggested it is possible courts will move away from the traditional immunity rule.  One of these cases involved allegations of legal malpractice.

Despite the recent decisions, friendly expert witnesses still have absolute immunity in New Jersey, and it is important that their rights are protected when threatened. At some point, the issue will be decided, though. Until it is, uncertainty will remain for expert witnesses.

For those who make use of expert witnesses, in legal malpractice cases or in other malpractice cases, it is crucial to work with an experienced attorney who can help select expert witnesses who not only meet the requirements of state law and who can provide favorable testimony, but who are also reliable, trustworthy and responsible in their testimony. This both strengthens their testimony and the case of the professional on whose behalf they are testifying, but also protects them from potential liability. 

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