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In Whisler v. Lundy Flitter Beldecos & Berger, a legal malpractice action arising out of an underlying construction defect action, Swartz Campbell attorney Josh J.T. Byrne, Esquire argued on behalf of his clients that plaintiffs presented no evidence of their alleged damages, and they failed to demonstrate a breach of duty on the part of their attorney.  The underlying action was settled for $140,000, as well as promises by the builder to make repairs.  Plaintiffs asserted defendants did not properly present their personal injury claims, depriving them of a greater settlement (no personal injury claims for one of the plaintiffs were asserted by a prior attorney in the complaint, and although defendants moved, unopposed, to amend the complaint, the motion to amend was denied).  In response to defendants’ motion for summary judgment, plaintiffs presented an expert report suggesting if the motion to amend had been filed earlier, it would have been granted, increasing the value of plaintiffs’ claims.  The motion court noted plaintiffs presented no information as to why the motion to amend was denied, and “no details as to why an earlier-filed motion would have been granted.”  The Appellate Division agreed stating:

We fully subscribe to the motion judge’s analysis that without knowing why that first Law Division judge denied [the attorney’s] motion to amend, it is impossible, without rank speculation, to opine that an earlier-filed motion would have been granted.

The motion court found the expert’s opinion to be an inadmissible “net opinion,” and agreed there was no evidence of damages.  The motion court found there was no evidence of a breach of duty, that any breach of duty was the proximate cause of damages, or that actual damages were incurred.  The Appellate Division agreed.