Suit-within-suit requirement in legal malpractice action against attorney by client alleging he lost case as a result of attorney’s error or negligence

   
Legal malpractice claim against attorney: the case-within-the-case causation element 

To prevail on a legal malpractice claim, a plaintiff must show that “(1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries, and (4) damages occurred.” Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); see also Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from underlying litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172.

Courts often refer to this causation aspect of the plaintiff’s burden as the “suitwithin-a-suit” requirement. See id. at 173. In general, one proves causation in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119–20.

SOURCE: FIRST COURT OF APPEALS - 01-13-00099-CV - 4/1/2014  (Borrell v. Robert Scott Wiliams and his law office)

Because Borrell has not adduced evidence to support a finding that he would have prevailed in the underlying case save for his lawyer’s malpractice, we hold that he has failed to raise a fact issue regarding the “case within a case” causation element of his claim against Williams. See Merrell Dow Pharm., 953 S.W.2d at 711; TEX. R. CIV. P. 166(i). Accordingly, the trial court properly granted a no-evidence summary judgment. See Merrell Dow Pharm., 953 S.W.2d at 711; TEX. R. CIV. P. 166(i).