Tuesday, January 25, 2011
The New Jersey Appellate Division reversed an order quashing a subpoena in a legal malpractice case against the plaintiff's former criminal defense attorney. The plaintiff had been convicted of armed robbery and alleges negligence in the failure of his attorney to pursue an alibi defense. The conviction was reversed "principally based on judicial errors."
The defendants sought evidence in aid of attacking the alibi claim. The trial court found that the testimony sought had no relevance to the malpractice claim.
The court here disgreed. While a plaintiff need not prove actual innocence to pursue a legal malpractice claim, the alibi and actual innocence are at issue in the matter. The evidence (which might challenge the alibi) is thus relevant to the allegations. (Mike Frisch)