A Texas Court of Appeals affirmed a lower court’s award of summary judgement in favor of a defendant law firm. In sum, both courts concluded that the plaintiffs’ expert’s affidavit opining upon the existence of legal malpractice was too conclusory and lacked sufficient support. These findings seem unusual as one typically obtains summary judgement only in the absence of any genuine issue of material fact. The opinion can be accessed here.

            The plaintiffs were White Rock Exploration, Inc. and its owner Richard Clay. The defendant was its prior law firm. That firm prosecuted negligence and misrepresentation claims against Palestine Water Well Service, Inc. (Palestine). White Rock had contracted with Palestine to drill an exploratory well. Ultimately, White Rock concluded that Palestine did not have the equipment or expertise to perform the work. Sound like a boring case so far? But Palestine’s owner alleged that White Rock’s owner assaulted him with a knife during a tour of the failed project. And Palestine’s owner allegedly staged a crime scene to support the false allegations, resulting in the arrest of White Rock’s owner.

            Down the road a bit, the owner of White Rock hired the defendant law firm to pursue claims against Palestine and its owner. The law firm allegedly persuaded White Rock to delay filing suit against the fake stabbing victim and failed to pursue an early settlement with his company. Even further down the road, the law firm allegedly convinced White Rock to settle with Palestine for $0 and to instead pursue its owner. But the statute of limitations for slander and malicious prosecution for the fake knife assault claim had already come and gone.

            So, White Rock accepted the prospect of even more unfruitful attorneys’ fees and brought suit against its law firm. In support of its claims of legal malpractice it retained an expert, for more money, who studied the case and submitted an affidavit in support of White Rock’s negligence claims against the law firm.

            The law firm filed what in Texas is called a “no-evidence motion for summary judgement,” claiming that there was no evidence of negligence by the law firm, even though there hadn’t been an evidentiary hearing or a trial yet. White Rock opposed its law firm’s motion for summary judgment with among other things, an affidavit from its former owner and the attorney that represented him after his unfortunate arrest for aggravated assault with a deadly weapon.

            The lower and appeals courts found both affidavits taken together insufficient as a matter of law. Will White Rock now sue its legal malpractice attorney for legal malpractice in its prosecution of the legal malpractice case against the first former law firm? It’s happened before! Food for thought.