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.