observing that “to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar”; arguing that “[t]he privilege of being an attorney should not carry with it immunity from the jury system”
How later courts described this case
- observing that “to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar”; arguing that “[t]he privilege of being an attorney should not carry with it immunity from the jury system”
- recognizing general rule that causation is fact question, but finding that causation in appellate legal- malpractice case is question of law
- recognizing general rule that causation is fact question, but holding causation in appellate legal-malpractice case is question of law
- "in a case of appellate legal malpractice the determination of causation is a question of law”
Written by the judges who cited it.
The opinion
OPINION ON REHEARING
MAUZY, Justice,
dissenting.
I respectfully dissent from this court’s decision that the determination of causation in cases of appellate legal malpractice is a question of law for a judge and not a question of fact to be presented to a jury.
The field of appellate law is no more complicated or obscure than the fields of medicine, chemistry, engineering, biology, construction, or any of a myriad of professions. In all negligence cases involving these professions, the issue of causation is submitted to the jury. The rule should be *629 no different — and no less — for attorneys. Further, to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar.
Attorneys are no more subject to alleged abuse by the jury system than any other litigant. If causation in an appellate legal malpractice case were submitted to a jury, the courts of appeals would still have the right of review under proper evidentiary standards. The trial court would also have the option of submitting to a jury appropriate instructions regarding the case.
I believe this type of case can and should be resolved in the same manner as other types of professional malpractice. In such cases every party has a right to call expert witnesses and present supportive evidence. Expert testimony on mixed questions of fact and law is clearly admissible and proper. Birchfteld v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987). Each party then has a right to cross-examine the witnesses brought by the opposing party and to have the entire case submitted to a jury.
The privilege of being an attorney should not carry with it immunity from the jury system. The argument that attorney-judges are better equipped to decide appellate legal malpractice cases is elitist. We do not impanel a jury of physicians to decide a medical malpractice case. Because the court has circumvented the constitutional right to trial by jury to assist lawyers, I dissent.
RAY, J., joins in this dissenting opinion on rehearing.