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Two New Legal Malpractice Opinions Show The Importance Of The Case Within A Case

In the last two weeks, Texas appellate courts have decided two legal malpractice cases on behalf of the attorneys because the client couldn’t prove that he would have prevailed in the underlying case.

Last Friday, in Hackett v. Littlepage & Booth, 2009 Tex. App. Lexis 1166 (Tex. App. – Austin, Feb. 20, 2009), the Court upheld summary judgment in favor of the defendant lawyers.  Hackett hired Littlepage & Booth to file claims against Celebrex alleging that Celebrex caused one of his medical conditions.  That suit was eventually dismissed, and Hackett filed suit against the firm for not suing the two physicians that prescribed the Celebrex.

In the legal malpractice claim, Hackett retained a physician expert that offered opinions that Celebrex caused his condition and that the physicians should not have prescribed the drug.  Littlepage & Booth challenged the expert’s testimony as unreliable, arguing that there were no epidemiological studies to support the link between Celebrex and Hackett’s condition.    The trial court (Judge Stephen Yelenosky here in Travis County) granted the motion.  Once the expert was deemed unreliable, Hackett didn’t have any evidence to support the case within a case, and the court granted the law firm’s motion for summary judgment.

The Austin Court of Appeals upheld both rulings, and Hackett lost because he could not prevail on the case within a case.  There was also an interesting issue regarding Deceptive Trade Practices Act claims in the legal malpractice context, but I think I’ll save that discussion for a later post.

A similar result was reached in Simon v. Miller & Associates, PLLC, 2009 Tex. App. LEXIS 989 (Tex. App. – Houston [14th Dist.], Feb. 12, 2009).  Simon filed a small claims suit against his apartment complex, and the judge told him that he had sued the wrong defendants.  Simon then hired the law firm to pursue the claim, but the law firm never amended to add the correct parties.  The firm then withdrew from representing Simon shortly before the trial.  Simon’s claim was eventually dismissed because he had the wrong parties.

After the dismissal, Simon filed suit against the law firm pro se (meaning he was acting as his own attorney).  At trial, all of the parties agreed that the firm breached its duty and was negligent.  However, the trial court heard the evidence, decided that Simon would not have won his suit, and ruled for the defendant.  That finding was upheld by the Court of Appeals.

Both of these cases help demonstrate that the most fruitful defense in many legal malpractice cases is the challenge to causation.  In many suits, there is no question that the defendant breached its duty to the client, but the defendant is able to make some hay as a defense by arguing causation.

This often produces a weird dynamic in cases against plaintiff’s lawyers, particularly when they had the underlying case on a contingent basis.  The defendant lawyer is essentially arguing that the claim that he was pursuing in the underlying case, even if he agreed to do it on a contingent basis, was a frivolous claim.  These defenses can lead to some fun depositions for the legal malpractice plaintiff’s lawyer.


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