PJC Malpractice 2024

PJC 84.4

E CONOMIC D AMAGES

ings and proof and recoverable under a legally accepted theory. The instructions should be drafted in an attempt to make the plaintiff whole but not to put him in a bet ter position than he would have been in had the defendant not been negligent. Substan tive law will determine the proper elements of damages for legal malpractice. This question does not address any damages for breach of fiduciary duty. See chapters 60– 63 in this volume and PJC 84.7. Measures generally alternative. The measures outlined above are generally alternative, although some may be in addition to one of the other measures. Value of the original suit. This measure may be appropriate for the failure to file or properly prosecute a lawsuit. The client must show that he would have made a recovery that would have been collectible on or after the date a judgment in the under lying case was or would have been rendered. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development & Research Corp. , 299 S.W.3d 106, 113–14 (Tex. 2009). It is unnecessary to submit a separate question on whether the recovery would have been collectible. See Schlosser v. Tropoli , 609 S.W.2d 255, 258–59 (Tex. App.— Houston [14th Dist.] 1980, writ ref’d n.r.e.). One Texas appellate court has held that damages measured by the value of the original suit need not be reduced by the amount of the contingent fee that the client would have owed to the attorney if the underlying suit had been successfully prosecuted. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Development & Research Corp. , 232 S.W.3d 883, 897–99 (Tex. App.— Dallas 2007), rev’d on other grounds , 299 S.W.3d 106 (Tex. 2009). Loss to the value of the original suit. This measure may be appropriate for neg ligent handling of a lawsuit, leading to a poor result either by verdict, settlement, or appeal. Again, the jury must be instructed on the element of collectibility. See Balles teros v. Jones , 985 S.W.2d 485, 500 (Tex. App.—San Antonio 1998, pet. denied); Smith v. Heard , 980 S.W.2d 693, 693–96 (Tex. App.—San Antonio 1998, pet. denied). The increase in damages assessed against Paul Payne in the original suit. This measure may be appropriate for the negligent defense of a case. Similarly, if a defense attorney’s malpractice inflated the settlement value of a case, the client may be able to recover as damages the difference between the settlement amount and the actual value of the case if handled properly, less any expenses avoided or saved as a result of the settlement. See Keck, Mahin & Cate v. National Union Fire Insurance Co. of Pitts burgh , 20 S.W.3d 692, 703 (Tex. 2000); Heath v. Herron , 732 S.W.2d 748, 753 (Tex. App.—Houston [14th Dist.] 1987, writ denied). A lawyer is not responsible for a loss to a client who would have lost the case without the negligence of the lawyer. For example, even if a lawyer failed to answer for a client, the client must still establish that he had a defense to the case or that the negligence of the lawyer made his loss greater. See Haynes & Boone v. Bowser Bouldin, Ltd. , 864 S.W.2d 662, 672 (Tex. App.—San Antonio 1993), rev’d in part on other grounds , 896 S.W.2d 179 (Tex. 1995).

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