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Texas Appeals Court Rejects Malpractice Claim Arising from $20M Arbitration Loss

Self-represented Plaintiff Missed Critical Deadline to Identify Expert Witness

On August 8, 2018, the Texas Fourth District Court of Appeals in San Antonio declined to reinstate a legal malpractice lawsuit brought by a petroleum engineer against his former law firm. A three-judge panel held that the engineer, who initially represented himself without an attorney in the malpractice case, missed a key deadline; for submitting evidence to the trial court.

The case, Black v. Watts, arose from an earlier arbitration proceeding where the engineer, Paul Black, was represented by law firms Watts Guerra LLP and Harris & Greenwell, LLP. Black alleged that the firms and individual attorneys Mikal Watts and James R. Harris committed malpractice when they failed to make a critical objection during the arbitration. As a result, Black said they were liable for a $31 million award; that should have been only $11 million. In effect, Black alleged his lawyers’ negligence cost him $20 million.

Black initially filed his malpractice lawsuit pro se–that is without counsel. Harris and his firm filed an answer to the lawsuit and requested discovery from Black; under the Texas Rules of Civil Procedure. Among other items, this discovery request required Black to identify any expert witnesses he planned to call in support of his malpractice claim. Texas Rules normally give a party 30 days to respond or object to these discovery requests.

Black did not take any further action in his malpractice case for approximately 14 months, when he finally hired an attorney to handle his case.

The defendants then filed a “no-evidence” motion for summary judgment, pointing to the fact Black had “failed to conduct any discovery” or “designate any experts” for over a year. Black responded that prior to the request for discovery he was unaware. Resulting in him asking the trial court for permission to designate an expert witness, attorney Alan Brandt Daughtry.

The trial court rejected this request and granted the defense motion for no-evidence summary judgment.

The Fourth District affirmed the trial court.

Writing for the appeals panel, Justice Karen Angelini noted it’s “common practice for practitioners to include requests for disclosure”; when answering a complaint. And there was no excuse for Black’s “untimely designation of his expert witness.” Without the admission of Daughtry’s testimony, Black “could not meet his burden to respond to Harris and Watt’s no-evidence motion for summary judgment.”

Dallas professional malpractice lawyer Bruce A. Campbell said the Fourth District’s decision was not surprising.

“There’s a reason people say that a man who is his own lawyer ‘has a fool for a client. Representing yourself in court is always a bad idea. But when you’re attempting to blame your lawyers for a bad outcome in a prior legal proceeding; it is particularly foolish to barge into court without understanding the basic procedural rules. These rules exist to ensure that both sides receive a fair trial. Which is especially critical when an attorney’s reputation and professional livelihood is at stake.”