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Implicit in the recent Texas Supreme Court opinion regarding legal malpractice, reversing Houston’s 1st Court of Appeals, is a warning to plaintiffs’ attorneys that they had better offer expert testimony on the issue of causation if they hope to prove “trial malpractice.” The majority in Tom Alexander and Alexander & McEvily v. Turtur & Associates Inc., stated that expert testimony was required to assist the jury to determine whether a “client would have prevailed in an underlying trial, but for its attorneys alleged negligence in preparing and trying the case.” “If the matter is not within the common knowledge of a layperson [jury], you need experts,” said Marie Yeates, a partner in Houston-based Vinson & Elkins who successfully led the appellate team for the attorney-petitioners. However, Valorie Davenport of Houston-based Davenport Legal Group, who led the appellate team for the client-respondents, believes otherwise. “Whether the defendant’s negligence caused the harm is typically a fact question for the jury,” she said. The underlying legal malpractice case involved attorney Tom Alexander and the firm in which he was then a partner, the now-defunct Alexander & McEvily. Alexander was hired to represent Turtur & Associates Inc. in an “adversarial” bankruptcy proceeding that involved Turtor and the bankruptcy-debtor, McKellar Ranch Inc. Turtur hired Alexander & McEvily with the understanding that Tom Alexander would be lead counsel. However, Alexander’s new associate, Judy Mingledorff, who had never tried a civil case, was assigned to the case. McKellar Ranch was awarded damages of more than $105,700, later reduced to a $37,000 settlement. Turtur sued Alexander and his firm for malpractice. At the trial, Davenport called Steve Peterson, a former general counsel for the State Bar of Texas, who testified that, in his expert opinion, Alexander was negligent in failing to participate in the case. But he would not testify that, but for the alleged malpractice, the verdict would have been different. The jury believed there was sufficient evidence of causation, awarding the plaintiffs’ damages of $3 million. But the trial judge thought expert testimony was needed and entered a judgment notwithstanding the verdict. The 1st Court reversed, finding no need for an expert because the causation between the attorneys’ negligence and the plaintiff’s harm was “obvious.” It was this decision reversing the trial court that was, in turn, reversed by the Supreme Court.

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