NJ Supreme Court Approves New and Revised Jury Instructions for Use in Professional Liability and Employment MattersS

The New Jersey Supreme Court Committee on Model Civil Jury Charges approved new and revised Model Jury Charges for use in professional liability cases. Included in these changes are two significant changes to the Model Civil Jury Charges concerning legal malpractice cases and three changes to Model Civil Jury Charges addressing areas of employment law.

LEGAL MALPRACTICE

The New Jersey Supreme Court Committee on Model Civil Jury Charges approved revisions to the jury instructions on Legal Malpractice (5.51A) and on Proximate Cause in Legal Malpractice involving Inadequate or Incomplete Legal Advice (5.51B). The Committee updated 5.51A to include new caselaw and additional instruction on duty and negligence. The new charge incorporates Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343 (2004), which holds that “the proper approach in trying a legal malpractice action will depend on the facts, the legal theories, the impediments to one or more modes of trial, and, where two or more approaches are legitimate, to plaintiff’s preference. Courts are not to become involved in determining how a legal malpractice case is tried unless the parties disagree, in which case the final determination of the court is a discretionary judgment that is entitled to deference.” Id. (emphasis added).

Additionally, the charge clarified the standard of care for an attorney designated by the Supreme Court of New Jersey as a “certified attorney” in specific areas of law. More specifically, the charge provides that if the case involves attorneys who hold themselves out as specialists or who have been designated as a “certified attorney” in civil trial law, criminal trial law, matrimonial law, municipal court law, and workers’ compensation law, those attorneys must exercise the knowledge and skill ordinarily possessed by other specialists in that area of law.

The Committee updated the instructions to reflect new developments in legal malpractice claims where a plaintiff alleges that they were guaranteed or promised a particular result. According to the charge, “the law recognizes that in the practice of law, an attorney cannot guarantee a favorable outcome.” (5.51A) However, where an attorney guarantees or promises a result, a trial court will determine whether there are common law causes of action like breach of contract and/or promissory estoppel. See generally Murphy v. Implicito, 392 N.J. 245, 265 (App. Div. 2007) (holding that in certain cases where special agreement is made, action may be breach of contract). The charge specifies that an attorney is obligated to perform work according to the standard of care by formulating a reasonable legal strategy. Where an attorney formulates a reasonable legal strategy, then the attorney did not commit malpractice even if the outcome of the case was unsuccessful, with exceptions. See Ziegelheim v. Apollo, 128 N.J. 250, 261 (1992) (holding that an attorney does not formulate a reasonable strategy where that attorney fails to file a lawsuit within the statute of limitations).

The civil jury instructions on Proximate Cause in Legal Malpractice (5.51B) were also updated to include the recently decided case of Gilbert v. Stewart, 247 N.J. 421 (2021), which held that a determination that an attorney breached the duty of care owed to a client must be followed by a fact-sensitive proximate cause inquiry. More specifically, even where there are other concurrent causes of the client’s harm, such as his or her own negligence, the jury must determine whether the attorney’s negligence was a substantial factor in creating the harm. If it was, then the attorney is liable for the extent of the harm caused. If, however, the client acted contrary to the attorney’s advice or if, applying the substantial factor test it was the client’s actions that were the sole cause of harm, liability would not attach. Gilbert v. Stewart, 247 N.J. 421 (2021). Accordingly, under Gilbert, when a lawyer is hired to provide advice and counsel and the client performs an act that causes the client harm, the client cannot be held to be contributory negligent when the client was following the lawyer’s advice. Id. at 445-47.

EMPLOYMENT LAW

The New Jersey Supreme Court Committee on Model Jury Charges also approved revisions to the charges regarding: Hostile Work Environment Claims Under the New Jersey Law Against Discrimination (Sexual and Other Harassment)(2.25) Failure to Accommodate Employee with Disability Under the New Jersey Law Against Discrimination (2.26), and Penalizing Employee Affected by Pregnancy for Requesting or Using an Accommodation (2.26A). First, the Committee updated the charge on Hostile Work Environment Claims Under the New Jersey Law Against Discrimination (Sexual and Other Harassment)(2.25) to address the recent decision of Rios v. Meda Pharmaceutical, Inc., 247N.J. 1, 11-12 (2021). In Rios, the Court considered whether a supervisor’s use of offensive slurs could support a hostile work environment claim. The Court held that a rational jury could conclude that demeaning and contemptuous slurs, allegedly uttered by a direct supervisor, were sufficiently severe or pervasive to create a hostile work environment in violation of the New Jersey Law Against Discrimination. The revised Model Jury Charge now includes a citation to Rios in support of the conclusion that hostile work environment conduct can consist of either a single incident or an accumulation of incidents. The charges also cite to Rios to support the conclusion that a supervisor’s actions can have a greater impact than misconduct by fellow employees.

The Committee updated the charge concerning Failure to Accommodate Employee with Disability under the New Jersey Law Against Discrimination (2.26) to reflect the recent opinion in Richter v. Oakland Board of Education, 246 N.J. 507 (2021). In Richter, the plaintiff, a longtime diabetic and teacher, experienced a hypoglycemic event in a classroom which she claimed happened because her work schedule prevented her from eating lunch early enough in the day to maintain proper blood sugar levels. The Court addressed whether the plaintiff was required to establish an adverse employment action to proceed with a failure-to-accommodate claim under the New Jersey Law Against Discrimination. The Court held that a plaintiff does not have to establish that they were subjected to an adverse employment action separate and apart from the failure to accommodate in order to prove a failure to accommodate. The Court also held that the plaintiff’s failure to accommodate claim was not barred by the Worker’s Compensation Act, and that the plaintiff did not need to filter her claim of failure to accommodate through the “intentional wrong exception”. The revised charge now specifically notes that a failure-to-accommodate claim does not require an adverse employment action separate and apart from the failure to accommodate itself.

Finally, the Committee revised the charge on Penalizing Employee Affected by Pregnancy for Requesting or Using an Accommodation (2.26A) by incorporating the Appellate Division’s request in Delanoy v. Township of Ocean, 426 N.J. Super. 78 (App. Div. 2020) and Delanoy v. Township of Ocean, 245 N.J. Super. 384 (App. Div. 2021). Delanoy was the Court’s first opportunity to consider the New Jersey Pregnant Workers Fairness Act (PWFA), L, 2013, c, 220.  In Delanoy, the plaintiff filed a pregnancy discrimination claim against her employer based on the PWFA. The Appellate Division provided a detailed discussion of the PWFA as providing multiple theories upon which a claim may be based. As reasoned by the Appellate Division, there are three distinct causes of action for pregnant and breastfeeding employees within N.J.S.A. 10:5-12(s): (1) unequal or unfavorable treatment; (2) failure to accommodate; and (3) unlawful penalization. The New Jersey Supreme Court concurred with the Appellate Division’s guidance, providing further instruction as to the application of the PWFA.

Model Jury Charge 2.26A now incorporates the Court’s holding in Delanoy. Citing to Delanoy, the charge provides that a plaintiff alleging a claim in connection with the use of an accommodation in connection with pregnancy or breastfeeding must prove four elements. First, the plaintiff must prove that the defendant knew or should have known that the plaintiff was affected by pregnancy or breastfeeding. Second, the plaintiff must prove that plaintiff requested or used an accommodation in relation to pregnancy or breastfeeding – based on the advice of a doctor, and plaintiff must prove that the defendant was aware of the request or use of accommodation. Third, plaintiff must prove that the defendant detrimentally altered one or more terms, privileges, or conditions of employment. Fourth, plaintiff must prove a causal connection between the request/use of the accommodation and the defendant’s decision to change the terms, conditions, or privileges of the plaintiff’s employment. The charge does not incorporate the burden shifting found in caselaw related to the New Jersey Law Against Discrimination. The charge notes that if a plaintiff proves these elements by a preponderance of the evidence, then the jury must find in favor of the plaintiff. If the jury does not find that the plaintiff proved each of the four elements, or if the jury finds that the defendant has proven by a preponderance of the evidence that maintaining the plaintiff’s terms, conditions and privileges of employment would have imposed an undue burden on the defendant, then the jury must return a verdict in favor of the defendant.

At Zarwin, Baum, DeVito, Kaplan, Schaer, Todd, P.C., we diligently defend the interests of our clients by staying up to date on the most recent developments in the law. Understanding the instructions and jury charges that the trial judge will give impacts every stage of litigation and trial preparation. Any lawyer who tries cases in complex areas of the law must understand not only the nuances of the law, but the actual words the trial Judge will use to instruct the jury about the law.

If you have any questions regarding this update or any other related matters, please contact one of our attorneys.