Brown v. Brown (2004)
In Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.--Dallas 2004, pet. denied), the Court considered the effect of the failure of an expert's affidavit in a legal-malpractice case to attach the documents referred to by the witness. See Brown, 145 S.W.3d at 751-53.
In that case, the plaintiff sued the attorneys who represented him in his divorce. Id. at 748. The attorneys filed no-evidence motions for summary judgment. The plaintiff filed a response supported by his affidavit and the affidavit of an attorney as an expert witness. Id.
The expert's affidavit made conclusions about the attorneys negligence based on her review of the records of the divorce case, but those records were not attached to the affidavit or included in the summary judgment record. Id. at 752.
The Court stated in Brown that an affidavit is substantively defective when the absence of the referenced documents makes the affidavit conclusory. Id.
The Court decided that without the records of the divorce case on which the expert based her conclusions that the attorneys were negligent, the affidavit was conclusory and, therefore, substantively defective. Id. at 753.