Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C
In Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889 (Tex. App.--Dallas 2005, pet. denied), the only evidence offered at trial on one of two plaintiffs' damages was the testimony of the plaintiff himself; the jury found no damages for that plaintiff but found damages for the other plaintiff who possessed financial experience. Id. at 891.
In response to the motion for summary judgment filed in the subsequent legal malpractice suit, an attorney's expert affidavit expressed an opinion based upon certain pages of the record of testimony of the two plaintiffs in the underlying trial, and stated that the failure to prepare the case for presentation of Allbritton's damages and to retain an expert to evaluate and testify to those damages was the proximate cause of damages to Allbritton. Id. at 892-93.
The attorney explained that Allbritton did not have the background or education to present testimony as to the methodology of calculating damages and the methodology the plaintiff did use was incorrect because it was not consistent with the methodology used by qualified damages experts. Id. at 893.
The attorney's affidavit was accompanied by an accountant's affidavit that supplied the correct methodology for calculating the plaintiff's damages. Id. at 892, 893-94.
Thus, the analyses used to reach the experts' conclusions were apparent from the record and the trial court erred in striking the affidavits. Id. at 894.