The Pain Care Center, Inc., and Marsha Hughes v. O'Connor & Hannan, L.L.P., No. 14-06-00166-CV (Tex. App.--Houston [14th Dist.] September 25, 2007) (Opinion Delivered by Chief Justice Adele Hedges).

Background

In May 2001, employee Kirk Coverstone sued The Pain Care Center and Marsha Hughes, the firm's CEO, in a dispute centered upon the terms of Coverstone's employment contract. After dismissing original legal counsel assigned to the case, Ms. Hughes engaged attorney Michael Wing, and his firm, O'Connor & Hannan, to represent her and The Pain Care Center in the case.

Wing left O'Connor & Hannan several months later, but the firm never asked to be dismissed as counsel in the Coverstone suit. Following the issuance of a judgment in favor of Coverstone, Hughes filed suit against both Wing and O'Connor & Hannan, alleging professional negligence, fraud, breach of contract, and breach of fiduciary duty. Before trial, Wing independently settled with The Pain Care Center and Hughes. The trial court granted a no-evidence summary judgment in favor of O'Connor & Hannan and against Hughes and The Pain Care Center on the breach of contract issue.

However, the trial court found that the representation of Hughes and the Pain Care Center in the underlying action had been negligently performed, and that O'Connor & Hannan was vicariously liable for the acts of negligence because it had failed to secure a court order removing the firm from the responsibility of defending Hughes and the Pain Care Center after Wing's separation from the firm. The jury awarded $98,056.17 in damages, but the court applied a settlement credit for Wing's prior settlement ($300,000) to the award. The jury also found that the firm had not committed fraud against The Pain Care Center or Hughes.

The Pain Care Center and Hughes subsequently appealed the trial court's findings, citing multiple issues, including untimely discovery on the part of the defendants and the trial court's failure to find the defendants guilty of fraud.

Discovery Disputes

The appellants maintained that the trial court erred in allowing the defendants to present trial witnesses since O'Connor & Hannan had failed to "timely and adequately answer discovery." See Tex.R. Civ. P. 193.6(a) (providing that a party that fails to timely identify a witness may not offer that witness's testimony at trial), 215 (governing sanctions for discovery abuses).

The appeals court, however, noted that the sole reason given in support of this argument was the defendants' failure to identify the witnesses they intended to call until thirty days prior to trial. The appellants failed to explain why the thirty day notice was untimely, instead merely alleging that it was. They also failed to cite any relevant precedents to support this assertion. The appeals court noted, therefore, that the issue had not been properly briefed. See Tex. R. App. P. 38.1(h) (requiring that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record").

Hughes and The Pain Center also argued that the defendants had failed to state the relevant connection between the witnesses called and the case at hand. The appeals court, however, found that the connection was clearly stated in documentation provided by the defendants. Therefore, the appeals court held that the trial court had not erred in the matter of discovery, and subsequently upheld the court's decision.

Fraud

Hughes and The Pain Care Center alleged that the jury's failure to find fraud was against the overwhelming weight of the evidence presented at trial. To support this argument, they presented the law firm's brochure as evidence of fraudulent statements made, including the assurance that all clients' legal defense would be handled by a team, the firm would choose the attorney whose skills were best suited to the job, and the lawyer so chosen would be an experienced litigation attorney.

The appeals court pointed out that the jury was asked to find the firm guilty of fraud only if the firm knowingly made material misrepresentations of fact in the brochure that the firm planned to act upon. The jury would also have to believe Hughes' testimony that she relied largely on the brochure and firm website containing the alleged fraudulent claims in order to select O'Connor and Hannan as legal counsel.

The appeals court noted, "the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony." See GTE Mobilnet, 61 S.W.3d at 615-16. "On the most basic level, the jury may simply have disbelieved Hughes' self-serving testimony." See, e.g., Purcell Const., Inc. v. Welch, 17 S.W.3d 398, 401-02 (Tex.App.--Houston [1st Dist.] 2000, no pet.) (holding evidence was factually sufficient where jury could have disbelieved testimony of principle of defendant company).

The court also observed the evidence that Hughes and Wing had a relationship prior to and independent of the attorney-client relationship. Wing was Hughes' college professor, and Hughes' own testimony, along with email correspondence between the two, was presented at trial to establish their prior relationship and discussion of the Coverstone case. Since a finding of fraud would require the jury to believe that Hughes chose Wing and O'Connor and Hannan as legal counsel based upon allegedly fraudulent claims in the brochure and website, the appeals court did not find that the jury's failure to do so was against the weight of the evidence presented at trial. For that reason, the appellant's final issue regarding fraud was also overruled and the trial court's prior ruling upheld.

        

Martinez v. Leeds, No. 08-05-00240-CV, 2007 WL 778643 (Tex. App.--El Paso 2007).

Filing a legal malpractice claim pro se is not the best idea. Appellant, a pro se litigant, sought both media attention and judicial relief against an attorney appointed as guardian ad litem and counsel to her. Appellee was appointed attorney and guardian ad litem to Appellant in connection with an emergency removal petition filed against Appellant by the Texas Department of Protective and Regulatory Services on July 26, 2001. On November 13, 2001, Appellee filed a motion to withdraw as counsel of record, based on Appellant’s alleged refusal to follow his advice and insistence on involving the media. Appellee attached a letter from Appellant to the El Paso Times to his motion to withdraw, in which Appellant accused Appellee of being “inadequate and ineffectual.” The trial court granted Appellee’s motion.

On October 21, 2004, Appellant filed a suit against Appellant for legal malpractice, breach of contract, defamation, and violation of her constitutional rights. Appellant filed an answer on November 5, 2004, and then both a traditional and a no evidence summary judgment motion. Both motions were granted; Appellant appeals.

The Court held that it need only analyze the propriety of the no-evidence summary judgment rule, because if its standard was met, the more stringent standard of a traditional summary judgment motion would also be met.

“A no-evidence summary judgment under Rule 166a(i) is essentially a pretrial directed verdict, and we therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. The party moving for no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would the burden of proof at trial . The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of his claim or defense.”

The Court noted that Appellant did not provide any response to Appellee’s summary judgment motion, and therefore did not meet her burden to raise a genuine issue of material fact. Her brief and conclusory statements were unsupported by argument or citation to legal authority. Despite the allowance made because Appellant was not an attorney, nothing was provided for the court to review.

Next, the Court noted that Appellant argued that when the trial court granted summary judgment, she was denied her right to a jury trial. The court held that any constitutional challenges must be presented by motion, answer, or response to a motion for summary judgment, or they will not be considered. Regardless, the court noted that when there is no genuine issue of material fact, granting summary judgment does not violate a party’s constitutional right to a jury trial. Accordingly, the Court affirmed the trial court.

        

Brennan v. Manning, 2007 WL 1098476 (Tex. App.--Amarillo 2007).

In this case, the client knew of monies potentially owed to her in her divorce action, but did not fault counsel for not pursuing such claim until well after the lawsuit was over and done with.

In 1995, the client retained Manning and his law firm to represent her in a divorce proceeding against James Brennan. Brennan was an attorney specializing in personal injury litigation. At the time of the divorce, the client was aware that her husband received income from contingent fees and from the referral of cases to other attorneys. The client contended that during the lawyers' representation of her, she received erroneous legal advice from Manning that caused her to receive an inadequate share of the marital estate. Specifically, she maintained that Manning incorrectly advised her that she was not entitled to an interest in any contingent or referral legal fees owed to her husband.

The client's divorce proceeding resulted in the entry of a Decree of Divorce on January 23, 1998. Subsequent to entry of the Decree of Divorce, the client was periodically represented by the lawyers on matters related to the enforcement of that decree. The underlying cause of action was filed on June 24, 2004.

Manning and the other defendants filed an Original Answer affirmatively alleging that the client's claims were barred by limitations. The lawyers subsequently filed a traditional and no-evidence Amended Motion for Summary Judgment alleging that the client's claims were barred by limitations and a lack of causation. The client contended that limitations did not operate to bar her cause of action for three reasons: (1) limitations was tolled during the existence of an attorney-client relationship; (2) accrual of her cause of action was deferred due to the discovery rule; and (3) limitations was tolled due to fraudulent concealment by The lawyers. The client further contended the summary judgment evidence raised a question of fact as to causation.

The trial court granted summary judgment in favor of the lawyers, holding that the client’s claims were barred both by the statute of limitations and lack of causation. The Court of Appeals affirmed.

Hughes tolling rule held inapplicable

The Court of Appeals found that the Hughes tolling rule was inapplicable:

Legal malpractice claims are governed by a two year statute of limitations. A legal malpractice claim accrues when the legal injury occurs, unless there is a legal basis for tolling limitations. Appellant's legal malpractice claim centers upon her allegation that she received an inadequate division of community property when Manning incorrectly advised her that she was not entitled to a share of referral or contingency fees from lawsuits pending at the time of her divorce. Therefore, Appellant's legal malpractice claim accrued when she sustained a legal injury, which would have been at the time the community property was divided by the entry of a decree of divorce.

Appellant, relying upon Willis v. Maverick, would have us adopt a bright line rule that says in a legal malpractice cause of action, limitations is tolled so long as the attorney-client relationship exists between the parties. Appellant's reliance on Willis is misplaced. The existence of an attorney-client relationship does not, standing alone, toll limitations in a legal malpractice cause of action. Rather, limitations in a legal malpractice cause of action is tolled due to the attorney-client relationship only when the attorney's malpractice occurs and is discoverable during the course of the underlying litigation being pursued by the attorney on behalf of the client. The Hughes rule, which tolls the limitations period until all appeals in the underlying action are exhausted, is expressly limited to cases involving claims of attorney malpractice in the prosecution or defense of the underlying litigation and does not apply to malpractice claims involving transactional work.

Appellant's Decree of Divorce was signed on January 23, 1998. Therefore, applying the Hughes rule to the facts of this case, the statute of limitations on Appellant's legal malpractice cause of action was tolled until February 22, 1998, the date her divorce decree became final.

Subsequent to the Decree of Divorce becoming final, Manning performed legal services for Appellant in the nature of work incident to the enforcement of the decree. Appellant would have this Court extend the Hughes rule to revive the tolling of limitations during these periods of representation. We conclude that reasons underlying the Hughes rule are inapposite to the facts of this case, and we decline to extend that rule without clear precedent.

Tolling under discovery rule had long since run

With respect to the discovery rule, the court stated that this rule would operate to defer accrual of a cause of action until the client knew or should have known that she had an interest in the fees in question, but that she still sued too late:

Appellant further argues that the accrual of her cause of action was deferred due to the fact that she could not and did not discover the erroneous advice. The "discovery rule" exception to the statute of limitations operates to defer accrual of a cause of action until such time as the claimant knows, or in the exercise of reasonable diligence should know, of the facts giving rise to her claim or cause of action.

Therefore, the accrual of her cause of action, and concomitantly, the commencement of limitations, was deferred until that point in time that Appellant, with the exercise of reasonable diligence, knew or should have known that the community had an interest in the referral or contingent fees owed to her husband as a result of cases pending at the time of their divorce. Competent summary judgment evidence established that, more than two years prior to the commencement of this suit, Appellant had specific knowledge that referral and contingent fees were a part of their community estate because they had been listed as such in a sworn inventory filed by her husband in a prior divorce proceeding between the parties. Furthermore, Appellant was aware of specific referral and contingency fees cases pending at the time of her divorce and she even spoke to other lawyers concerning her right to receive a portion of the fees due to her husband from those cases. Subsequent to the divorce, Appellant retained an attorney to assist her in securing part of a referral or contingent fee that was due to be paid to her former husband. Based upon these facts, Appellant either knew, or in the exercise of reasonable diligence should have known, the facts giving rise to her claim more than two years prior to the commencement of this cause of action. As such, the trial court did not err in finding that the "discovery rule" did not operate so as to defer the accrual of Appellant's cause of action.

Fraudulent inducement also rejected

Finally, with respect to fraudulent inducement, the court held that it was inapplicable for the same reasons as the discovery rule was:

Appellant further argues the statute of limitations was tolled by the doctrine of fraudulent concealment. The tolling of limitations based upon fraudulent concealment is a distinct concept from the "discovery rule" exception and it exists for different reasons. When applicable, the doctrine of fraudulent concealment operates to estop a defendant from relying on limitations as a defense. The doctrine provides that where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is estopped from relying on the defense of limitations until the party either learns of the right of action or should have learned thereof through the exercise of reasonable diligence. For the same reason that the discovery rule did not bar the application of the statute of limitations, the doctrine of fraudulent concealment does not operate to bar limitations.

Professional services exemption barred DTPA claim

The Texas Deceptive Trade Practices Act (DTPA) expressly exempts claims for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. This exemption does not, however, apply to: (1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information in violation of § 17.46(b)(24); (3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion; (4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or (5) a violation of § 17.46(b)(24).

The Court of Appeals agreed that none of the exceptions to the professional services exemption applied in this case:

Appellant's claims are clearly based upon legal services provided to her by Manning and the other Appellees. The essence of those legal services was the providing of advice, judgment, opinion, or similar skill. As such, the professional services exception to the DTPA was raised by the evidence, thereby shifting the burden to Appellant to establish an exception to the exemption.

In order to establish the "failure to disclose" information in violation of § 17.46(b)(24) exception, the party must prove (1) the concealing-party knew something material about the goods or services being rendered (2) which was not disclosed (3) with the intent to induce the claimant-consumer into entering into a transaction, and (4) the claimant-consumer would not have entered into the transaction had the information been disclosed. Appellant produced no summary judgment evidence which would have shown that either Manning or the other Appellees knew that any of the advice given to Appellant was erroneous. Furthermore, she failed to produce any summary judgment evidence that would have established that the failure to disclose any erroneous advice was done so with the intent to induce her into entering into the divorce settlement reached, nor that she would not have entered into the agreement reached had the allegedly erroneous information been disclosed. Appellant, therefore, failed to establish the "failure to disclose" exception to the professional services exemption.

In order to establish the "unconscionable" exception to the professional services exemption, a consumer-complainant must establish that the complained of conduct was unconscionable. An unconscionable act is one that takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a "grossly unfair degree," or which results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration. Unconscionable action requires a showing that the resulting unfairness was glaringly noticeable, flagrant, and unmitigated. Conduct simply showing the failure to exercise that degree of care, skill, and diligence that an attorney of ordinary skill and knowledge would have exercised under the same or similar circumstances does not equate to an unconscionable act in violation of the DTPA. Having reviewed Appellant's claim of unconscionability in light of the entire transaction, we find that Appellant's claims are best stated as simple negligence claims. It cannot be said that the alleged concealment of erroneous advice resulted in glaringly noticeable, flagrant, and unmitigated unfairness to Appellant in the attorney-client relationship. Accordingly, we find Appellant's summary judgment evidence did not establish the "unconscionable" exception to the professional services exemption.

        

Layton v. Clark, 2007 WL 654360 (Tex. App.--Amarillo 2007).

Be careful what you state in your papers, as your words may later be used against you. Here, the former client asked to take a presuit deposition of  his former attorney, who had represented him in a May 1996 trial. Rule 202 of the Texas Rules of Civil Procedure permits taking a deposition to be used either in anticipation of litigation or in investigation of a potential claim. The trial court denied the request without a hearing. The client appealed.

On appeal, the former client argued that there were a number of constitutional questions that would require reversal. He also argued that his request was not intended to be a deposition in anticipation of filing a lawsuit, but rather to investigate an actual innocence claim.

Unfortunately for the former client, however, his original filed petition expressly stated that he was seeking to depose the lawyer to

“investigate a potential claim arising out of the trial of Petitioner … wherein the deponent may have committed legal malpractice.”

A trial court’s ruling is a final appealable order if the deposition sought is against a third party against whom suit is not contemplated. Accordingly, the Court of Appeals held that here, the appellant clearly sought discovery with the intent to file a legal malpractice case. Therefore, the order was interlocutory in nature and nonappealable. Thus, the Court of Appeals lacked jurisdiction to hear the appeal and dismissed it for lack of jurisdiction.

        

Juarez v. Elizondo, 2007 WL 835427 (Tex. App.--San Antonio 2007).

What do you do when faced with an expert witness who has lots of opinions, but all are unsubstantiated? Appellants were faced with this dilemma in this case. The client hired the attorneys and their law firm to file a lawsuit arising from the death of Elijio Juarez, Jr. This lawsuit alleged that Juarez died as a result of brake failure on an oil tanker he was driving, which caused it to overturn. Because the employer was a workers compensation subscriber, only a claim for gross negligence could be brought against Mr. Juarez’s former employer. A claim was also asserted against an automotive shop that had inspected the truck before the accident; that claim settled before trial. A jury rejected the gross negligence claim and declined to award exemplary damages (which are permitted, even though workers compensation prevents recovery of actual damages). The client did not appeal but instead sued the lawyers, claiming legal malpractice.

The client sought to utilize Retired Justice J. Bonner Dorsey. It was Justice Dorsey’s opinion that the lawyers were negligent in failing to request a jury charge that conditionally submitted the actual damage question on a finding of liability for gross negligence or otherwise inquired about liability for gross negligence before the actual damage question. He also stated that the lawyers were negligent in failing to object to jury argument that compared gross negligence to murder and asserted that the client would only receive the actual damages awarded instead of exemplary damages. Justice Dorsey felt that the jury wanted to give the appellees everything they were entitled to, but that they were mislead by the jury argument.

The trial court granted summary judgment in favor of the lawyers, excluding Justice Dorsey’s expert opinion. The Court of Appeals affirmed.

With regard to the jury charge, Justice Dorsey said that no actual damages question should have submitted. However, when he was presented with authority stating that such a question was necessary, he changed his opinion. He then stated that the question order in the jury charge should have been reversed, so that the jury was not asked about damages until it stated whether there was gross negligence. However, Justice Dorsey also acknowledged that question order in a jury charge is within the court’s discretion and admitted that the charge was legally correct.

The Court of Appeals held that if no proper objection to a jury charge exists, then there can be no negligence for failing to object. In this case, an actual damages question needed to be submitted, and the submitted charge was consistent with the Texas Pattern Jury Charges. Accordingly, a reasonable attorney could have decided not to request any changes.

The court also held that an expert witness’s conclusory statements are insufficient to defeat a summary judgment motion. The court found that Justice Dorsey provided no legal support for his opinions and that the portions of his opinion were properly stricken.

Because we have concluded that Justice Dorsey failed to provide sufficient support for his opinions regarding the jury charge and those portions of his opinion were properly stricken, the remaining testimony does not constitute evidence that the appellees cause the appellants any damage by failing to object to the jury argument. Because the appellants presented no other expert to support their legal malpractice claim, the trial court properly granted the no evidence summary judgment as to this claim.

Accordingly, his remaining testimony did not constitute evidence of legal malpractice, the court found, and the summary judgment was justified.

        

Sprowl v. Dooley, No. 05-06-00359-CV (Tex. App.–Dallas May 8, 2007) (not designated for publication). Ruling on Summary Judgment. If you plan to prosecute a legal malpractice action, it helps if you file your expert’s affidavit on time when opposing a no-evidence summary judgment motion. Background The appellant, Linda Sprowl, sought reversal of a lower court’s ruling, which granted the attorneys’ motion for summary judgment on her legal malpractice claim. Sprowl’s expert affidavit was not filed in a timely manner. She further argued that her claim was not barred by res judicata. Sprowl had hired the law firm of Dooley & Rucker to pursue a defamation case; she later filing a malpractice claim against the law firm of Marshal Dooley and Michael Scott for negligence, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA). The defendants moved for summary judgment. Sprowl failed to timely file an expert’s affidavit addressing the standard of care of a reasonably prudent attorney and the alleged causal link between any breach of the duties by her attorney and her claimed injuries. The associate judge granted the summary judgment. Sprowl appealed the decision to the district court, which heard arguments on December 12, 2005. Three days later, Sprowl filed an expert affidavit of Charles McGarry to support her legal malpractice claims. In February 2006, the district court entered a final judgment, which affirmed the associate judge’s ruling. Timely summary judgment evidence lacking The court of appeals affirmed the trial court's judgment ...<< MORE >>

In re Specialty Restaurant Group, LLC, No. 07-30779-HDH-11 (N.D. Tex. April 24, 2007). Ruling on Creditor’s Application to Disqualify Debtor’s Attorneys. A happy client makes for a happy lawyer. A bankruptcy court in Texas has ruled that a creditor’s committee cannot disqualify attorneys representing a debtor where the client-debtor is satisfied with the legal services provided to it by that law firm. The Court ruled in favor of the debtor and its attorneys. Background On April 19, 2007, the Court ruled on an application for Interim and Final Orders authorizing the employment and retention of the Law Firm of Fulbright & Jaworski, LLP, nunc pro tunc. The Committee of Unsecured Creditors filed objections to the employment of the law firm, claiming that the firm was not a disinterested party and that the firm represented an adverse interest to the bankruptcy of Specialty Restaurant Group. The Committee’s claim was based on a failure to conduct a Uniform Commercial Code (UCC) search, and a failure to commence the case within ninety days of a failed perfection of a security interest in property by Specialty Restaurant Group’s secured creditor. The Committee claimed that the firm committed legal malpractice. They also claimed that and the bankruptcy estate had a claim against the firm and sought disqualification of the law firm from representing the company. Specialty Restaurant Group requested that the court approve Fulbright & Jaworski’s post-petition application as counsel and indicated that the company was completely satisfied with the representation by the ...<< MORE >>

Martha Camp v. RCW & Co., Inc., No. H-05-3580 (S.D. Tex. May 3, 2007). Ruling on legal malpractice and Deceptive Trade Practices Act (DTPA) claims. In a tag-team application of the anti-fracturing and anti-assignment rules, a federal court collapsed multiple state law claims into a single legal malpractice claim and then rejected an attempted assignment of the legal malpractice claim. However, because the assignment was invalid as a transfer of the malpractice claim to the assignee, the assignor was permitted to pursue the malpractice claim. Background This case involved a business transaction related to the sale of a closely-held corporation, University Bookstore, Inc. (“UBI”), to a college bookstore’s employee stock ownership plan. Earnest Camp was the sole shareholder of UBI and his wife, Martha Camp served as President. The Camps hired defendant Preferred Business Services, Inc., to investigate the possibility of procuring a buyer for UBI’s assets. Eventually, Business Exchange and Mr. Camp signed a best-efforts listing agreement giving Business Exchange the exclusive right to sell assets of UBI, for which Business Exchange would receive $120,000. In November 1999, Business Exchange recommended that the Camps retain defendant R.C.W. & Co., Inc., to assist in the potential sale of UBI stock to an employee stock ownership plan. The Camps alleged that they had relied on Business Exchange's representation that Roland Criss was "a reputable investment bank and consulting firm with specialized knowledge and experience with employee stock ownership plans and stock related transactions" when they hired Roland ...<< MORE >>

Lawyers commonly swear to mandamus petitions that give the procedural history of events in the lower court. The Dallas Court of Appeals recently reminded the bar that such sworn petitions trigger a duty to update the appellate court promptly if subsequent proceedings in the lower court change the material facts stated in the petition. In In re the City of Lancaster, No. 05-07-00196-CV (Tex. App.--Dallas June 18, 2007), the city filed a mandamus petition attacking a summary judgment order. The trial court subsequently entered a modified summary judgment order which mooted some -- but not all -- of the City's grounds for seeking a writ of mandamus. Counsel for the city did not communicate to the appellate court that the trial court had revised the summary judgment that was the basis for the City's petition, or that the City's petition was moot in whole or in part. After the court issued an opinion on the mandamus petition, the parties filed an agreed motion to dismiss the proceeding, bringing to the court's attention for the first time that the trial court has issued the revised summary judgment. The Court of Appeals required the city's counsel to show cause why they should not be sanctioned or referred to the Office of Disciplinary Counsel. After receiving the attorneys' responses, the court said: . . . [T]he Texas Disciplinary Rules of Professional Conduct impose upon counsel the duty of candor toward the court. See Tex. Disciplinary R. Prof'L Conduct 3.03(a)(1), reprinted ...<< MORE >>

Some mistakes are so obvious that a jury can find negligence as a matter of common knowledge. Missing the statute of limitations is a classic example of negligence that any layperson can understand. But when is expert testimony required? Here are six areas from a recent case: Failing to diligently investigate a claim. Failing to diligently prosecute a claim. Failing to challenge a class action certification. Failing to answer and respond to discovery. Failing to file a stay of counterclaims. Failing to file a motion for contempt. Sprowl v. Dooley, No. 05-06-00359-CV, 2007 WL 1330447 (Tex. App.--Dallas ...<< MORE >>