Proving that the underlying case would have been won but for the lawyer’s alleged negligence is often one of the most difficult parts of a legal malpractice case for a plaintiff. A recent case illustrates that the legal malpractice case may require the same type of expert testimony as would have been presented in the underlying case. In Cantu v. Horany, No. 05-05-00879-CV, 2006 Tex. App. Lexis 5748 (Tex. App.–Dallas June 30, 2006), Cantu and Cortez sued Horany for negligence or legal malpractice alleging he failed to fully investigate the cause of their son’s death, to name all responsible medical or nursing providers in the underlying lawsuit, and to timely file a petition against the medical or nursing providers to prevent the statute of limitations from running. Horany answered the lawsuit, generally denying the allegations.

Cantu and Cortez’s legal malpractice claim required expert testimony to show that Horany breached the standard of care when he failed to sue all of the responsible medical and nursing providers and that they would have prevailed in the underlying medical malpractice suit against some of the responsible medical and nursing providers had the suit been brought.

A cause of action arising out of bad legal advice or improper representation is legal malpractice. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App.–Dallas 1995, writ denied); Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex. App.–Houston [1st Dist.] 2005, pet. denied). A legal malpractice action is based on negligence and requires proof of four elements: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiff’s injuries; and (4) damages occurred. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).

In a legal malpractice action, a plaintiff is required to prove that the attorney’s breach proximately caused his injuries. If the legal malpractice case arises from prior litigation, the plaintiff must prove that “but for” the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Rangel, 177 S.W.3d at 22. To meet this burden, the plaintiff is required to present evidence explaining the legal significance of the attorney’s alleged failure and the impact this failure had on the underlying action. See Indus. Clearinghouse, Inc. v. Jackson Walker, L.L.P., 162 S.W.3d 384, 388 (Tex. App.–Dallas 2005, pet. denied). In Texas, a plaintiff in a legal malpractice suit is required to present expert testimony regarding causation and the standard of skill and care ordinarily exercised by an attorney. See Alexander, 146 S.W.3d at 119-20; Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.-Austin 2002, pet. denied). Further, at times, an attorney’s expert testimony alone is not sufficient to establish causation. See Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 894 (Tex. App.–Dallas 2005, pet. denied) (op. on reh’g); Rangel, 177 S.W.3d at 22.

Horany filed a motion for no-evidence summary judgment claiming there was no evidence to establish his actions breached the duty he owed to Cantu and Cortez, that the breach proximately caused Cantu and Cortez’s injuries, and that damages occurred. In response, Cantu and Cortez submitted affidavits from Jim M. Perdue, Jr., as a testifying expert on legal malpractice issues, and from A. Dean Cromartie, M.D. who was the medical expert used by Horany in the underlying lawsuit.

The trial court sustained Horany’s objections to the medical expert’s affidavit. The court of appeals affirmed the trial court’s sustaining of the objections to the medical expert’s affidavit.

This left the affidavit of the attorney, Perdue, now unsupported by any medical expert testimony. The court of appeals found that the attorney’s affidavit was insufficient to show that the plaintiffs would have prevailed in the underlying medical malpractice action if a suit had been brought against some of the responsible medical and nursing providers:

Perdue’s affidavit provided legal expert testimony showing that Horany breached the standard of care when he failed to sue some of the responsible medical and nursing providers and stated that “[Cantu and Cortez] would have had a more likely than not probability of success in a trial or in settlement of the case against all [of the responsible medical and nursing providers].” However, Perdue’s affidavit alone was not sufficient to establish causation because, without Dr. Cromartie’s affidavit or deposition testimony, Cantu and Cortez did not have any medical expert testimony to show that they would have prevailed in the underlying medical malpractice action if a suit had been brought against some of the responsible medical and nursing providers. See Rangel, 177 S.W.3d at 22-23 (offered legal expert, but failed to present engineering, medical, or biomechanics expert testimony to show he would have prevailed in underlying products liability action).

We conclude Cantu and Cortez failed to raise more than a scintilla of evidence to prove they would have prevailed in the underlying medical malpractice suit against some of the responsible medical and nursing providers. Accordingly, they failed to establish that Horany committed legal malpractice when he failed to bring a medical malpractice claim against some of the responsible medical and nursing providers.