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What terms are outside the boundary of "usual and customary" in settlement of a New Jersey legal malpractice claim?

Princeton, NJ |

I recently agreed to settle a legal malpractice claim for less than 10 cents on the dollar to my damages because Defendant's insurance policy is so inadequate. (Plaintiff's "Expert Report" on this attorney's conduct was 100% damning. ) After I accepted this poor offer, her attorney drafted the settlement, and, without prior discussion or negotiation, put in clauses requiring "confidentiality" as to amount, terms, and conditions of settlement and requiring "non-disparagement". Is "confidentiality" as to amount, terms, and conditions "usual and customary"? Isn't "non-disparagement" "usual and customary" only when it benefits both sides, like in employment litigation? Doesn't it have a monetary value to a malpractice plaintiff? Must I have these terms forced upon me without compensation?

Attorney Answers 5

  1. First, if plaintiff’s expert's report were not 100% in plaintiff's favor, I might wonder about the expert. Contrary to the sometimes held belief that an expert's opinion should be objective and impartial, an expert is hired to further your cause and state your case with authority. Was the ten cents on the dollar the total amount of the defendant's policy? If not, why did you accept less than the policy if your case were so strong?

    The clauses you cite are not extraordinary for this type of case. Indeed, in New York, and perhaps New Jersey, confidentiality, etc., is a routine demand during settlement negotiations in professional malpractice cases. They are not being foisted upon you without compensation. You are being paid money to settle the case on these terms.

    I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer are not legal advice. These opinions are based on New York practice. We have no attorney-client relationship. conducting a conversation with me through the avvo comments section does not create an attorney-client relationship. I may be contacted at 212-553-9300.

  2. You may consider getting a second opinion from a New Jersey malpractice attorney. Good luck.

  3. You are in a negotiation. Put your best foot forward and be prepared to go to trial if you are unable to surpass any deal breakers.

  4. If you do not believe that the terms were agreed to and you are willing to forego the settlement over the terms , then tell them that this is unacceptable. Before you do, however, I would recommend that you review all of the pros and cons of doing so. Although, I doubt the defendant will ultimately insist on the conditions if it means that they won't get their settlement.

  5. Doesn't sound like you had good representation, and would be curious to know what firm this was. Many lawyers try to enter my world, but they aren't truly capable.

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