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At first blush, last week’s Texas Supreme Court opinion regarding legal malpractice seems as much a tactical roadmap as it is a cautionary tale. Implicit in its take-nothing judgment is an instruction and a warning to plaintiffs attorneys that they had better offer expert testimony on the issue of causation if they hope to prove “trial malpractice.” At least that’s what Chief Justice Tom Phillips seemed to be saying in Tom Alexander and Alexander & McEvily v. Turtur & Associates Inc., et al. Phillips wrote the majority opinion, which reversed the 2001 decision of Houston’s 1st Court of Appeals. The Supreme Court held that, in cases involving trial malpractice where causation wasn’t “obvious,” expert testimony was required to assist the jury in determining whether a “client would have prevailed in an underlying trial, but for its attorneys alleged negligence in preparing and trying the case.” Without expert testimony, the court stated, the jury had no direct evidence explaining the legal significance of omitted evidence and its impact on how the “decision-maker” (a judge or jury) in the underlying case might have reached a more favorable result for the client. “If the matter is not within the common knowledge of a layperson [jury], you need experts,” says Marie Yeates, a partner in Houston-based Vinson & Elkins who successfully led the appellate team for the attorney-petitioners. “The rule the court adopted is in harmony with medical malpractice cases where the issue is whether a doctor caused harm. There is no special rule for lawyers.” Valorie Davenport of Houston’s Davenport Legal Group, who led the appellate team for the client-respondents, believes the opinion will create just the opposite result. She argues that the court has carved out an exception for lawyers, making it more difficult for plaintiff-clients to sustain their legal malpractice cases. “Whether the defendant’s negligence caused the harm is typically a fact question for the jury,” she says. “Who better than a jury to make the decision about whether a fact-finder would have decided the underlying case differently? And yet the court is telling me I need an expert?” As a case of first impression in Texas, the opinion is of paramount legal significance. But the decision is compelling as much for what it didn’t say as what it did. WHAT THE COURT DID SAY According to the facts recited in the Supreme Court opinion, 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 in Tyler, Texas, that involved a soured business relationship between Turtor and the bankruptcy-debtor, McKellar Ranch Inc. Turtur had entered into an exclusive relationship with McKellar Ranch to market investments in “cattle embryo transplants” and “donor cow interests.” Disagreements ensued and the ranch filed for bankruptcy protection in 1985. Turtur’s claims of fraud and breach of contract and McKellar’s counterclaims of fraud and breach of fiduciary duty became the subjects of the adversarial proceeding in the bankruptcy. About two months before the trial, Turtur hired Alexander & McEvily with the understanding, wrote the Supreme Court, that Tom Alexander would be lead counsel. But two days before the proceeding, Alexander announced ready for trial in a Harris County court and the bankruptcy judge, having granted one continuance, refused to grant another. Alexander’s new associate, Judy Mingledorff, who never had tried a civil case and was assigned “to only help prepare the case,” according to the opinion, was forced to trial by the bankruptcy judge who limited the case to two days. Two years later in 1989, the judge awarded McKellar Ranch net damages of more than $105,700, which was later reduced after negotiations between the parties to a $37,000 settlement. Three months later, Turtur sued Alexander and his firm for malpractice, and later amended its petition to include a violation of the Texas Deceptive Trade Practices Act. Trial malpractice often is described as a case within a case and Davenport, who was also Turtur’s trial attorney, had to retry the original bankruptcy proceeding within the malpractice case — not to a judge this time, but to a jury. “I first presented the old case and then showed the jury what evidence was omitted,” she says. Davenport called Steve Peterson, a former general counsel for the State Bar of Texas, who, according to the Supreme Court’s decision, testified that in his expert opinion Alexander was negligent in failing to participate in the case and in failing immediately to advise Turtur of conflicting trial schedules; also he testified that Mingledorff was negligent in failing to review documents before trial, in failing to call witnesses and in failing to object to hearsay testimony. But Peterson would not testify that, but for the alleged malpractice, a more favorable verdict would have resulted. “He basically said, “I can tell you there was negligence, but I can’t tell you that the negligence caused the harm,’ ” Davenport says. “ [He said], “You have to ask your jury for that.’” The jury believed there was sufficient evidence of causation, awarding the plaintiffs actual damages of $3 million. But the trial judge thought expert testimony was needed and entered a judgment notwithstanding the verdict. The 1st Court figured otherwise, finding no need for an expert because the causation between the attorneys’ alleged negligence and the plaintiff’s harm was “obvious” even to a lay jury. It was this decision reversing the trial court that was, in turn, reversed by the state Supreme Court. “The Supreme Court decision was right in line with the majority of jurisdictions that require expert testimony to prove causation in trial malpractice cases,” says Yeates, who acknowledges she had good facts on her side. Whereas trial malpractice juries mostly are asked to decide whether a first jury would have decided the case differently but for the alleged negligence, the jury in Alexander had to decide whether a federal bankruptcy judge would have decided the case differently. “How in the world can a jury in a malpractice case do that?” Yeates asks. “We convinced the Supreme Court that the jury needs independent evidence of causation and this type of evidence should come from an expert.” Not surprisingly, Valorie Davenport couldn’t disagree more. WHAT THE COURT DIDN’T SAY “This opinion is the latest assault on juries by the Texas Supreme Court,” Davenport argues. “The bankruptcy judge was a fact-finder in the underlying case, and the ultimate expert on fact-finding, the jury, was found to be incompetent by the court.” Davenport, who admits she is frustrated and angered by the decision, sees it as part of a trend by the court to undermine the right of trial by jury in Texas. “The Supreme Court is not supposed to get involved in factual disputes unless the case is so bad, there is no evidence. Over the last 10 years, the court has decided more and more cases as a matter of law by finding there is no evidence.” A glimpse at Justice Nathan Hecht’s concurring opinion in Alexander gives some credence to Davenport’s arguments. Hecht suggests the question of causation in trial malpractice cases might be better viewed as a question of law rather than fact — and taken from the jury altogether. He emphasizes that the majority opinion did not decide that if expert testimony “had been adduced, the issue was properly one for the jury.” Even with expert testimony, wrote Hecht, “I worry what that testimony might be.” Hecht is not alone in his concerns. “The main opinion assumes there is somebody that has the qualifications to render an opinion on what a jury might have done differently,” says Robert Schuwerk, a professor of law at the University of Houston Law Center who specializes in attorney malpractice and disciplinary issues. “But it doesn’t tell us who that expert is, and I am not sure who that person might be.” Possible experts might be lawyers, judges and jury selection experts, says Randy Johnston, a legal malpractice lawyer and partner in Dallas’ Johnston & Tobey. “But ultimately the one thing that every trial lawyer realizes is that none of us know what a jury is going to do. It is based on probability, hope and prayer,” he says. While the majority did not adopt Hecht’s suggestion that malpractice causation might be a question of law, as a practical matter, when a trial judge serves as gatekeeper in allowing an expert to testify, it is again a question of law, Yeates says. “The expert will have to meet the standards of all experts under Texas law,” she explains. “A judge can keep the expert from testifying in a malpractice case if he does not believe the expert can reliably opine that but for the alleged negligence in the underlying case, the result would have been different.” So if the Supreme Court requires experts on the one hand, and the trial courts find them unable to reliably render an opinion on the other, are Texas courts making trial malpractice virtually unprovable? “It’s definitely making it harder to prove,” Schuwerk says. “I suppose the majority envisions an expert trial lawyer saying, “If I had that kind of killer evidence, I would have won.’ But I am perplexed about how any expert can testify to that. Justice Hecht seemed to have the same problem, although for different reasons.” Schuwerk agrees with Davenport, that no one can gauge the effect of new evidence on 12 laypeople any better than 12 laypeople. Davenport believes it so strongly, she plans on filing a petition with the U.S. Supreme Court for a writ of certiorari in Alexander, claiming that the Texas Supreme Court has abridged the right to trial by jury. Hecht, on the other hand, wrote that the majority only decided that a jury in this case could not determine causation without an expert. “Whether causation in a case like the present one should be determined by a judge rather than a jury should be left for another day.” If Hecht becomes the next chief justice after Phillips’ retirement, there seems a distinct possibility that day will come.

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