Can You Appeal Based On Legal Malpractice?

Should a pro se litigant be presumed to be committing legal malpractice? That’s the plain meaning of a ruling by a New Jersey appellate court in the case of Thomas Klenert. The court reversed a summary judgment against Mr. Klenert because the lower court failed to properly advise him of his responsibilities or to rehear final arguments after Klenert hired a lawyer.

Klenert stopped paying dues on his golf club membership in 2004, and the club sued him in 2010. Klenert had resigned as a member years earlier and, despite being billed annually, felt he didn’t need to pay their bills because the club had violated the terms of his contract. During discovery, the club sent Klenert a discovery request that essentially asked him to admit all material allegations in their complaint. Klenert ignored the request, unwittingly admitting the allegations. The court later granted the club’s motion for summary judgment based on those admissions.

We have previously warned about ignoring a request for admissions. You can ignore any other form of discovery your opponent sends you, but any admissions you don’t deny or object to are automatically deemed admitted. That’s what happened to Klenert. We’ve also talked about the need for evidence in dealing with summary judgment motions. Klenert responded to the club’s motion for summary judgment without evincing any facts contradicting the club’s allegations. He failed to dispute the club’s claims with anything other than legal conclusions.

But Klenert appealed the court’s summary judgment against him on the basis that he didn’t know the law, legal malpractice. He (or rather his new lawyer) argued on appeal that he should’ve been given another shot at opposing summary judgment after he hired a lawyer. The appeals court agreed, explaining that had his new lawyer replaced an incompetent or negligent lawyer, he would’ve gotten that extra shot:

To be sure, we do not mean to suggest a self-represented party is entitled to a second chance in all instances — far from it. We merely hold that a pro se litigant is entitled to nothing less than that to which a litigant is entitled when represented by a negligent attorney.

Get a Fair Hearing in Court

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Judges have a responsibility to assure the rights of all litigants before them. The most famous case protecting the rights of self-represented litigants is Haines v. Kerner, 404 U.S. 520 (1971), holding that pro se pleadings and motions should be viewed liberally and held to a lesser standard than those drafted by attorneys.

On the other hand, a more recent federal case, Baldinger v. Ferri, No. 12-4529 (3d Cir. 2013), held that a pro se litigant’s repeated and willful discovery abuses did not require forgiveness and merited a default judgment. So a judge should take note when a pro se litigant appears in court and should be lenient in interpreting the legal writing of self-represented parties. But the court must also be fair to their opponents.

To date, there has been no ruling at the national level outlining the specific actions a judge must take to ensure fairness to both parties. While we all deserve judges who proactively address these procedural traps for pro se litigants, it would be foolish to expect that kind of care. Best to be aware of the necessary civil procedures and be prepared to litigate your case without the court’s assistance. It’s really not that hard to avoid legal malpractice.

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Joseph Bertone
July 3, 2023 2:57 pm

My attorney never informed me of an imminent sheriff sale on my home. I had to inform them. They also made no attempt the summary judgement which led to the Sherrif sale. I didn’t even know I could appeal it. Is it too late to appeal now with a sheriff sale scheduled in three weeks. I have since dismissed the law firm that was supposedly representing me.

July 5, 2023 6:10 am

Does this service provide help to file a legal malpractice case? If yes, are there attorneys to assist behind the scenes?