Texas PJC Malpractice 2022

N ONMEDICAL M ALPRACTICE —D EFINITIONS & I NSTRUCTIONS

PJC 60.2

Attorney malpractice. Judicial error can constitute a new and independent cause if the attorney did not contribute to the judicial error and the trial court’s error was not a reasonably foreseeable result of the attorney’s negligence in light of all existing cir cumstances. Stanfield v. Neubaum , 494 S.W.3d 90, 99–100 (Tex 2016). Although the issue of whether judicial error constitutes a new and independent cause was deter mined as a matter of law in Neubaum , there may be situations where the evidence sup ports the submission of a jury instruction as to whether the facts constitute judicial error; however, it is up to the fact finder (jury) to decide if the event cuts off the proxi mate cause connection. Caveat. Instructions are proper only if they are raised by the pleadings and the evidence. Tex. R. Civ. P. 278. Submission of an instruction that is not supported by evidence may be reversible error. See Galvan v. Fedder , 678 S.W.2d 596, 598–99 (Tex. App.—Houston [14th Dist.] 1984, no writ). The refusal to give any inferential rebuttal instruction, even if properly requested and supported by the evidence, is not necessarily reversible error. “New and independent cause” is an inferential rebuttal instruction. See Thota , 366 S.W.3d at 684. The Texas Supreme Court has held that (1) trial courts have significant discretion in determining which inferential rebuttal instructions to submit, Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); (2) even if an inferential rebuttal instruction is supported by the evidence, submitting it is not mandatory, Gunn v. McCoy , 554 S.W.3d 645, 676 (Tex. 2018); (3) multiple inferential rebuttal instructions have “the potential to skew the jury’s analysis,” Dillard v. Texas Electric Cooperative , 157 S.W.3d 429, 433 (Tex. 2005); and (4)the trial court’s decision regarding whether to submit an inferential rebuttal instruction is subject to a harmless error analysis. Gunn , 554 S.W.3d at 676; Thota , 366 S.W.3d at 687.

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