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New Jersey Appellate Court reinforces net opinion doctrine in malpractice claims

8/13/26

By: Camille Darius and Meaghan Mahon

The New Jersey Appellate Division’s decision in Martin v. Loury, No. A-1452-23(NJ Super. Ct. App. Div. July 15, 2026), WL 2042525, is a useful reminder for attorneys and professional liability insurers defending legal malpractice claims: speculation about what might have happened in the underlying case is not enough. A plaintiff must connect the alleged attorney error to a provable loss, and expert opinions must be grounded in the record rather than hypothetical outcomes.

The dispute began when the defendant law firm sued former client Kirk Loury to recover unpaid fees stemming from their representation of Loury in an employment matter. Loury responded with a legal malpractice counterclaim, arguing that his attorney should have done more to challenge testimony from the former employer’s chief executive concerning Loury’s compensation and pursue a larger damages award. The trial court ultimately dismissed the malpractice counterclaim with prejudice, and Loury appealed.

The Appellate Division affirmed the exclusion of Loury’s liability expert and the dismissal of the malpractice claim. The court focused on two essential elements: proximate cause and actual damages. Although Loury argued that his former counsel should have recalled him as a rebuttal witness, his expert could not explain how that testimony would have changed the outcome. The judge in the underlying action had already rejected the employer’s damages theory and accepted Loury’s position, making any claim that additional testimony would have produced a larger award speculative.

The court’s analysis turned on the absence of a factual link between the alleged error and a measurable loss. As the court emphasized, expert opinions must provide the “why and wherefore” supporting the conclusion reached. It is not enough for an expert to say that an attorney’s conduct caused harm; the opinion must explain, with record support, how the alleged negligence altered the result. Here, both the causation theory and claimed damages rested on possibilities rather than proof.

The takeaway for legal malpractice defendants is clear. Courts will closely scrutinize causation theories, and experts who cannot show how the alleged negligence changed the outcome may be excluded. A viable malpractice claim requires more than identifying a potential mistake by counsel; it requires proof that the mistake caused a specific injury. When the theory depends on a judge or jury reaching a different result, the claimant must show why that outcome was probable, not merely possible. Without that causal link, a legal malpractice claim may not survive dispositive motion practice.

For more information, please contact Camille Darius at camille.darius@fmglaw.com, Meaghan Mahon at meaghan.mahon@fmglaw.com or your local FMG attorney.

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