KELLEY & WITHERSPOON, LLP v. Hooper, Tex: Court of Appeals, 5th Dist. 2013 – Google Scholar.
When the claim is that a lawyer breached the duty of care and thereby lost a case, the plaintiff must prove a case within a case, that is, that but for the lawyer’s negligence the plaintiff would have won the underlying case.
The Hooper case is a routine legal malpractice case in which the lawyers allegedly failed to sue the correct defendant in an auto accident case. At trial the jury found the law firm negligent and awarded damages of $235,000.
On appeal the law firm argued that the plaintiff had not established proximate causation in the underlying case, that is, that his injuries were the result of the accident. The appellate court reversed the verdict.
The court explained: “a legal malpractice plaintiff who contends that his attorney’s negligence cause him to lose a claim he otherwise would have won and collected on must adduce expert testimony to prove the case-within-a-case aspect of causation if that causal connection is beyond a lay juror’s understanding…If the plaintiff would have needed medical-expert testimony to prevail in the underlying suit, then the same kind of testimony is required to prove the case within a case in the legal malpractice suit.”
Few courts have reached this issue or discussed it so thoughtfully.
Edward X. Clinton, Jr.