Texas PJC Malpractice 2022

PJC 61.5

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s name ( Paul Payne ) should not be included in the above question. In a case in which the plaintiff’s negligence is in issue, or in any case including more than one defendant, a proportionate responsibility question should follow PJC 61.5. Tex. Civ. Prac. & Rem. Code §§ 33.001–.017. See PJC 61.7 and 61.9. Plaintiff must prove defendant’s negligence caused loss. In a claim of legal malpractice, the plaintiff must prove that the defendant’s negligence caused the loss. Rogers v. Zanetti , 518 S.W.3d 394, 400 (Tex. 2017); Cosgrove v. Grimes , 774 S.W.2d 662 (Tex. 1989). Therefore, a client suing an attorney on the ground that the latter caused the former to lose a cause of action has the burden of proving that the original action would have been successful and the amount that would have been collected if a favorable judgment had been rendered. Jackson v. Urban, Coolidge, Pennington & Scott , 516 S.W.2d 948 (Tex. App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.); see also Schlosser v. Tropoli , 609 S.W.2d 255 (Tex. App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.); Patterson & Wallace v. Frazer , 79 S.W. 1077 (Tex. App. 1904, no writ). Thus, the plaintiff, in effect, is required to try two suits in one—a “suit within a suit.” Because the plaintiff has not yet proved the essential elements of the underlying cause of action, no additional burden is imposed by this requirement. In similar instances, a plaintiff is required to plead and prove the underlying basis of the claim. See Baker v. Goldsmith , 582 S.W.2d 404, 409 (Tex. 1979) (burden of persuasion on original plaintiff to prove underlying cause of action in bill-of-review hearing arising from default judgment). For the appropriate damages question and accompanying instruction, see PJC 84.3 and 84.4. Special rules for clients convicted of a crime. In a legal malpractice case alleg ing negligence in the defense of a criminal case, limitations are tolled until there is a final, nonappealable judgment in the underlying criminal proceeding and during any postconviction habeas corpus proceedings, but limitations run during periods follow ing the final judgment when no postconviction proceeding is pending. Gray v. Skelton , 595 S.W.3d 633, 640 (Tex. 2020) (“[W]e consider the tolling period to include not only the habeas application process but also the period during which Skelton’s case was pending for a new trial, awaiting the State’s prosecution.”). The client must get his conviction vacated and establish his innocence before he can sue his criminal defense lawyer for malpractice; otherwise, there is no causation as a matter of law. Peeler v. Hughes & Luce , 909 S.W.2d 494, 497–98 (Tex. 1995). If a cli ent has the conviction vacated on grounds other than actual innocence, the client may pursue a malpractice claim but must first obtain a finding of his innocence as a predi cate to the submission of his legal malpractice claim. Submission of the traditional ele ments of legal malpractice should accordingly be conditioned on an affirmative finding that the client is innocent of the crime of which he was convicted. In such a case, use the following predicate question before the liability question. The burden of

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