Brian Lauten Argues for Plaintiff Client in Malpractice Case Before Texas Supreme Court

Houston – Lyons & Simmons partner Brian P. Lauten was featured in a January 11 Law360 article that covered his oral argument brought before the Texas Supreme Court for the case of Rogers et al. v. Zanetti et al. (case number 15-0557). Within his argument, he urged the consideration of public policy in legal malpractice cases and argued that lower courts had decided on the case using an incorrect standard of evidence.

As the Law360 article – click here to read it in full (subscription may be required) – outlines, the plaintiffs of James Rogers, William Burmeister, Conservative Care Inc., and Care Affiliates Inc., in part represented by Attorney Lauten, alleged that defendant Andrews Kurth Kenyon LLP (Andrews Kurth) mishandled a previous case dated several years ago after drafting an unusable healthcare investment agreement. The plaintiffs, who were once clients of Andrews Kurth, also allege the defendant did not appropriately manage a potential $450,000 settlement correctly, which led to a subsequent $6,000,000 judgment against them regarding the contested control of a home healthcare company. Michelle Casady of Law360 writes that the plaintiffs claim “the firm [Andrews Kurth] drafted an unenforceable investment agreement and also failed to designate damages experts in the underlying trial, incurring sanctions that could have been avoided.”

The defendant’s legal representative, Attorney George Kryder, has presented the argument that the plaintiffs have yet to offer evidence of having a previously meritorious defense that was foiled by the legal malpractice of his client, Andrews Kurth. Casady’s article quoted Kryder as saying, “We have lawyers who shoulda, coulda, might have raised issues at the time that they didn't. The time to raise your meritorious defense is in the original trial. It's not 10 years later, which is what they're trying to do here.” Attorney Kryder’s argument effectively makes the claim that the plaintiffs want the Supreme Court of Texas to speculate on how the previous case of years’ passed would have been reviewed by an altogether different set of jurors. Andrews Kurth even went as far as to say fraud carried about by a plaintiff was the real reason the contract dispute and judgement occurred.

Brian Lauten refuted the defendant’s arguments before the Texas Supreme Court, insisted that there was indeed enough cause to believe malpractice led to the plaintiff’s many damages. The Law360 article included a Lauten quote: “There’s no dispute the lawyers had irreconcilable conflicts of interests and didn’t disclose… and there’s no dispute that both lawyers who tried the case testified that their malpractice was to blame.” Under both proposed circumstances, it would indicate that lower court dismissals had not weighed the right set of evidence for the case, relying on information presented in the initial lawsuit a decade ago.

Due to the complexity and potential precedent-setting nature of Rogers et al. v. Zanetti et al. (case number 15-0557), it is not known at this time when to expect that the Supreme Court of Texas will make its final ruling.

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