Bagan v. Karl Hays, et al., Court of Appeals of Texas, Third District, August 12, 2010.
Facts: The Defendant attorney served as Plaintiff’s divorce attorney in the underlying matrimonial action. As part of his representation, he drafted a settlement agreement providing that a number of business entities would remain in the wife’s name until Plaintiff paid her a sum certain over a period of time. Plaintiff, however, sold the business entities prior to completing his payment obligations to his former wife.
After his former wife sued him for breach of contract, Plaintiff brought the instant action alleging legal malpractice and breach of fiduciary duty. Specifically, Plaintiff alleged, among other things, that but for his former attorney’s negligent drafting, his wife would not have sued him for breach of contract.
Plaintiff failed to timely produce an expert report. In opposition to the Defendant attorney’s motion for summary judgment, Plaintiff argued that "negligent drafting" falls within the "common knowledge" exception, and therefore, the trier of fact did not need the assistance of an expert witness in determining how his former attorney violated the applicable standard of care.
Issue: Is expert opinion necessary to determine whether an attorney’s drafting of a provision in an agreement fell outside the applicable standard of care?
[T]he issue of whether a provision in a divorce decree demonstrates a breach of the applicable standard of care is not an issue that any layperson can understand.
The Court distinguished the attorney’s alleged negligence here from classic examples of common knowledge, i.e. missing the statute of limitations, and affirmed the trial court’s decision granting Defendants’ motion for summary judgment.
Lesson: Expert testimony will be necessary where the fact finder needs to make a decision with regard to whether an attorney breached the standard of care applicable to negotiating and drafting the terms of an agreement.