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Lisa Swain and Harry Swain v. J. Stuart Alterman

December 9, 2011

LISA SWAIN AND HARRY SWAIN, PLAINTIFFS-APPELLANTS,
v.
J. STUART ALTERMAN, ESQUIRE, ATTORNEY-AT-LAW AND ALTERMAN & ASSOCIATES, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3647-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2011

Before Judges Carchman and Nugent.

This is a legal malpractice action. Plaintiffs Lisa Swain and Harry Swain appeal from the March 4, 2011 order that dismissed their complaint because they failed to file an affidavit of merit as required by N.J.S.A. 2A:53A-27; and from the April 15, 2011 order that denied their motion for reconsideration. They argue they are not required to file an affidavit of merit because their theory of liability against defendants J. Stuart Alterman and Alterman & Associates*fn1 is based on common knowledge. Defendants counter that their affirmative defenses are inextricably intertwined with the elements of plaintiffs' affirmative malpractice claim; and their affirmative defenses require resolution of issues beyond the common knowledge of a lay person, and therefore require expert testimony and an affidavit of merit. We conclude that plaintiffs' malpractice claim falls within the common knowledge exception to the Affidavit of Merit Statute. Consequently, we reverse and remand for further proceedings.

I

Plaintiffs, New Jersey residents, were traveling in their car in Delaware when they were injured in an accident caused by a New York driver. The accident occurred on June 9, 2006. On September 11, 2006, they met with defendant in his Cherry Hill office where they provided personal information and information about the accident. The information pertaining to each plaintiff was recorded in a "Client Information Sheet." The information included the location of the accident, the name of the New York driver, and the injuries each had sustained in the accident. Mr. Swain signed an agreement bearing the letterhead of Alterman & Associates and containing, among other things, the following language:

I. INJURIES OR DAMAGES

You agree that the Law Firm will make a claim on your behalf against others who are responsible for your injuries or damages. You feel the responsible parties are: _________________.

II. LEGAL SERVICES

The Law Firm will protect your legal rights and do all necessary legal work to properly represent you in this matter.

The agreement also included a standard contingent fee provision.

The parties do not dispute that Mr. Swain signed an agreement between him and Alterman & Associates during the September 11, 2006 meeting, nor do they dispute that defendant did not file a lawsuit on behalf of either plaintiff and the statute of limitations for such an action expired. The record establishes that the only meeting between the parties was the September 11, 2006 meeting in defendant's office. Nothing in the motion record suggests defendant conducted any investigation, obtained plaintiffs' medical records, or attempted to refer plaintiffs to an attorney authorized to practice law in Delaware or New York.

Defendant disputes that Ms. Swain signed a retainer agreement. He asserts that Ms. Swain, who had suffered neck and back injuries in the accident, was unsure about pursuing a claim because she had a substantial pre-existing back injury from a ...


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