Allegations of legal malpractice must typically be supported by the opinion of an expert witness. A legal professional will usually provide an expert opinion that the lawyer who has been sued failed to provide the standard of representation that a reasonably competent lawyer would provide.

In addition to proving the lawyer’s negligence, a plaintiff must also prove that the negligence harmed the plaintiff, usually by causing the plaintiff to lose a case that the plaintiff should have won. Causation can be difficult to prove because it is hard to predict the future of litigation. Experts are again called upon to explain the likely outcome if the lawyer had not erred.

In a Texas case, the trial court and an intermediate appellate court concluded that the expert’s opinion as to causation was “conclusory” and therefore did not entitle the plaintiff to a trial. The Texas Supreme Court, however, reversed the Court of Appeal’s decision after finding that the expert provided sufficient reasons to believe that the outcome would have been better if the trial attorney had not been negligent.

Facts of the Case

Norma Gonzalez owns and manages Starwood Management, LLC, a charter aircraft company. One of her employees registered an aircraft in Starwood’s name. The Drug Enforcement Administration (DEA) seized the aircraft because it believed that the employee who registered it was not a U.S. citizen. A federal law prohibits a business entity from registering an aircraft unless at least 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the persons who own and control it are U.S. citizens. The DEA concluded that the employee was a controlling member of Starwood because he signed the registration as a Starwood “manager.”

Starwood’s insurer retained Attorney Don Swaim to contest the seizure. Swaim followed two strategies. First, he sued the DEA in federal court. However, since he failed to provide DEA with a verified claim prior to filing suit, the lawsuit was dismissed. The law makes such a claim a precondition of challenging a forfeiture in court.

Second, Swaim petitioned DEA for remission or mitigation. He asserted an “innocent owner” defense and argued that Starwood had a legal right to ownership of the aircraft.

The “remission and mitigation” route imposes substantial barriers to a successful return of the property. The burden is on the property owner to show its entitlement to the property and, even if the property owner meets the burden, the DEA is entitled to keep the seized property if it chooses to do so. The DEA denied the petition.

Challenging the seizure in a lawsuit places the burden on DEA to show that the seizure was justified. That route has a much better chance of success if, in fact, the seizure was not justified. Swaim’s blunder may therefore have been costly for Starwood.

The DEA also seized six other aircraft from Starwood. The insurer retained a different attorney, George Crow, to contest those seizures. Crow complied with the notice requirements and sued DEA. In the five cases that were resolved, Starwood obtained a return of the aircraft.

Legal Malpractice Claim

Gonzalez then sued Swaim for legal malpractice, alleging that Starwood lost its aircraft because Swaim neglected to file a notice of claim. Swaim moved for summary judgment, arguing that Gonzalez could not prove that his neglect caused the loss of the aircraft.

Gonzalez opposed summary judgment with the affidavit of George Crow. The affidavit explained that Crow was able to obtain the return of five other aircraft (the sixth case was still pending at the time) within a few months after filing lawsuits because the DEA’s case was weak. He opined that Swaim could have obtained the return of the aircraft if he had complied with the claim requirement, because the facts in the case Swaim handled were similar to the facts in the case that Crow handled. Another attorney supplied an affidavit that essentially tracked Crow’s.

The trial court refused to consider the affidavits and granted summary judgment in favor of Swaim. The Texas Court of Appeal affirmed that decision, concluding that the affidavits were conclusory because they did not make a “case-by-case comparison” of the facts in other aircraft seizure cases to the facts in the case that Swaim handled.

Texas Supreme Court Decision

The Texas Supreme Court noted that a plaintiff in a legal malpractice case will usually need to rely on an expert opinion to prove causation. The expert’s opinion must be probative rather than conclusory. To avoid being conclusory, the expert must explain how and why negligence caused the injury.

The state supreme court rejected the lower court’s suggestion that a case-by-case comparison to other cases is always necessary to prove causation in a legal malpractice case. The court reasoned that an expert’s affidavit is adequate if it explains why the expert reached the opinions that are expressed.

The lower courts erred by focusing on the lack of detail that Crow provided to support his opinion. Details go to the quality, not the adequacy, of an expert opinion. Crow explained that he followed the same methodology five times for the same client in cases with similar facts, and prevailed each time. His high success rate initiating lawsuits after filing a verified claim made it reasonable for Crow to conclude that Swaim would also have succeeded if he had followed the correct procedure.

Texas cases that require a case-by-case comparison of facts involved claims that a lawyer settled a case for less than it was worth. Those cases cannot be evaluated without comparing the plaintiff’s injury to the injuries sustained by plaintiffs who obtained higher settlements. Gonzalez’ case, on the other hand, did not require the same kind of comparison because causation was based on the failure to follow a procedure, and the differences in specific facts (such as the models of the aircraft that were seized) were not relevant to whether the plaintiff would have succeeded if the correct procedure had been followed. Crow’s reference to the other cases he handled, coupled with documents attached to the affidavit that explained why DEA seized those aircraft and why it eventually returned them, provided a sufficient factual basis to support his opinion.

The court also rejected Swaim’s argument that Crow could not establish that he would have won the case if DEA had taken the case to trial. Since DEA did not do so in the five cases that Crow handled, Crow had a reasonable basis for his opinion that DEA would not have done so in the case that Swaim handled. An expert is not required to address remote contingencies. All that is required to establish causation is to show that the outcome would probably have been more successful if malpractice had not occurred. Crow’s affidavit did that, so summary judgment should not have been granted.