Expert Opinions & Analysis


In any professional malpractice case, by definition, a Plaintiff needs to have an “expert witness” to testify, if the case goes to trial.  Yet the only way to possibly negotiate a settlement is to have an expert witness ready to go, for otherwise, the Defendant and his insurance company will not take the case seriously.  In New Jersey and most other states, there are court rules that specify how and when to use an expert witness.

The first required step is to obtain an Affidavit of Merit.  This is done at the beginning of a case, before there has been any pretrial discovery.  It requires the expert to say that, at least based on partial information, there is a reasonable probability that the lawyer was negligent, or otherwise liable.

After that, a formal expert report is required, well before trial.  The detailed assertions contained in the report are the only assertions that a trial judge will allow into evidence.  At this point, the expert would have to be provided with much more extensive evidence than at the Affidavit of Merit stage.  It is possible that the expert feels unable to make the necessary assertions.  There is no point faking it, because his deposition will be taken, and at trial, he will be cross-examined at length.

These provisions also apply to legal ethics cases, such as where a lawyer has been charged with unethical conduct, and needs to defend himself.

The purpose of an expert witness is simple. A “fact witness” (including the parties to the case) can only testify to what he saw, or what he personally knows.  An expert witness, however, can also give opinions.  He is defined as “a witness qualified as an expert by knowledge, skill, experience, training, or education”, who “will assist the trier of fact to understand the evidence” when it involves “scientific, technical, or other specialized knowledge”.  The Judge has to qualify the expert at trial before letting his testimony proceed.

In a legal malpractice case, you need an expert who is familiar with the type of work that the Defendant lawyer was performing, when he allegedly committed malpractice.  Mr. Michelson is able to perform this function in many fields of law, ranging from medical malpractice to business contracts, from real estate to personal injury cases, from employment law to land use work, and from wills and trusts to environmental law.  He does not accept cases that involve work where his experience would be seriously questioned.

Mr. Michelson invites both lawyers and clients, who may need an expert witness for their cases, to contact him without obligation.  He will discuss it for free, to the point where he can decide whether he would do justice in a particular case.  After a case is underway, he also provides litigation support, where desired, such as assistance with pretrial discovery or motion practice.