Doing without Experts and Legal Malpractice
Case: Allbritton v. Gillespie, Rozen, Tanner - Watsky, P.C. (Tex.App. Dist.5 03/04/2005)Justice Wright05-04-00132-CV
Reporting source: Texas Lawyer
Commentary on importance of the case:
Not hiring an expert witness to calculate damages can cause you to lose your case, or even land you in a legal malpractice suit. A current Texas case demonstrates just these dangers. A law firm represented two clients in a breach of contract suit against their employer. Rather than hiring an expert, the attorneys instructed the plaintiffs to prepare their own damage calculations. This was not a problem with one of the clients who had a financial background. The other, however, was trained in theology and lacked the skills to prepare such an estimate.
At trial, the two plaintiffs presented their self-generated damage estimates. When the jury found that the employer had indeed breached the contracts with both, the plaintiff with the ability to calculate and explain his damage estimates was awarded in excess of $4,000,000. The other plaintiff received nothing.
The unsuccessful plaintiff responded by filing a legal malpractice suit against his attorneys claiming they failed to prepare the case properly for presentation of damages. He also claimed that they were negligent in failing to hire an expert on damages in view of his lack of financial background and knowledge of how to calculate damages. To support his case, he secured affidavits from an attorney and an accountant. The two experts agreed that the defendant attorneys’ negligence was the “proximate cause” of the second plaintiff’s failure to receive any damages. The accountant pointed out that the plaintiff had failed to use a reasonable growth rate, had failed to use present value analysis, and had not adjusted his estimates to account for the probability of dying and being unemployed. As a result, the plaintiff’s estimates of damages, which the jury found not to be credible, were several times larger than those prepared by the accountant.
The attorneys sued for malpractice were successful in having the trial court issue a summary judgment based in part on the argument that the plaintiff’s experts’ affidavits were “conclusory,” i.e., they presented conclusions not based on reasonable and substantive arguments. This finding, however, was reversed on appeal and the case was remanded to the trial court.
This case demonstrates that your client may suffer if you do not obtain the expert opinions necessary to support your claims of lost income and other monetary damages. The cost in time and money of obtaining an expert is small indeed compared to the potential loss of damages your client may incur if the jury dismisses the “non-expert” calculations as not credible.
Court opinion:
http://www.law.com/jsp/tx/LawDecisionTX.jsp?id=1110310808706
Reporting source: Texas Lawyer
Commentary on importance of the case:
Not hiring an expert witness to calculate damages can cause you to lose your case, or even land you in a legal malpractice suit. A current Texas case demonstrates just these dangers. A law firm represented two clients in a breach of contract suit against their employer. Rather than hiring an expert, the attorneys instructed the plaintiffs to prepare their own damage calculations. This was not a problem with one of the clients who had a financial background. The other, however, was trained in theology and lacked the skills to prepare such an estimate.
At trial, the two plaintiffs presented their self-generated damage estimates. When the jury found that the employer had indeed breached the contracts with both, the plaintiff with the ability to calculate and explain his damage estimates was awarded in excess of $4,000,000. The other plaintiff received nothing.
The unsuccessful plaintiff responded by filing a legal malpractice suit against his attorneys claiming they failed to prepare the case properly for presentation of damages. He also claimed that they were negligent in failing to hire an expert on damages in view of his lack of financial background and knowledge of how to calculate damages. To support his case, he secured affidavits from an attorney and an accountant. The two experts agreed that the defendant attorneys’ negligence was the “proximate cause” of the second plaintiff’s failure to receive any damages. The accountant pointed out that the plaintiff had failed to use a reasonable growth rate, had failed to use present value analysis, and had not adjusted his estimates to account for the probability of dying and being unemployed. As a result, the plaintiff’s estimates of damages, which the jury found not to be credible, were several times larger than those prepared by the accountant.
The attorneys sued for malpractice were successful in having the trial court issue a summary judgment based in part on the argument that the plaintiff’s experts’ affidavits were “conclusory,” i.e., they presented conclusions not based on reasonable and substantive arguments. This finding, however, was reversed on appeal and the case was remanded to the trial court.
This case demonstrates that your client may suffer if you do not obtain the expert opinions necessary to support your claims of lost income and other monetary damages. The cost in time and money of obtaining an expert is small indeed compared to the potential loss of damages your client may incur if the jury dismisses the “non-expert” calculations as not credible.
Court opinion:
http://www.law.com/jsp/tx/LawDecisionTX.jsp?id=1110310808706
posted by The Experts @ 11:24 AM
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