Cook v. Irion

409 S.W.2d 475 (Tex. 1966)

 

RULE:

In order to prevail in a legal malpractice suit, claimants are required to establish by a preponderance of the evidence that the attorneys were negligent and that this negligence caused the claimants to lose their suit. It is necessary for the client to prove that his suit would have been successful but for the negligence of the attorney, and to show what amount would have been collectible had he recovered a judgment.

FACTS:

After appellee attorneys failed to bring the claim of appellants, husband and wife, for damages sustained by appellant wife during a fall at a local shopping center to a successful conclusion, appellants filed suit for legal malpractice. The lower court granted appellees' motion for an instructed verdict on their behalf and appellants sought review. The court affirmed the lower court's judgment.

ISSUE:

Whether, in a legal malpractice suit, it is necessary for the client to prove that his suit would have been successful but for the negligence of the attorney.

ANSWER:

Yes.

CONCLUSION:

The court found that there had been no allegation of lack of good faith or mishandling of the trial by appellees. Further, it was not gross negligence to sue only one of three possible party defendants where that single defendant was a proper defendant and there might have been adverse consequences in voir dire to suing all three possible defendants. Finally, appellants' expert's testimony was not controlling where that expert was not a local attorney and was not best qualified to second-guess the trial strategy of appellees just because they had not recovered damages for appellants.

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