Here is a Texas Case which illustrates the difficulty in plaintiff’s summary judgment in legal malpractice. The court says that expert’s affidavit is ‘conclusory", but what it really means is that it cannot decide on whether the mistake was all that apparent.
"What “appears” to an expert to be an “inescapable conclusion” is not so apparent to a court. In Tummel & Casso v. Snyder, the lawyers sued to recover fees and the client counterclaimed for legal malpractice. The clients then filed a “traditional” motion for partial summary judgment, alleging that the lawyers had committed legal malpractice in connection with their representation of the clients in two legal matters. Specifically, the clients alleged that appellants committed malpractice by pursuing (on the clients’ behalf) the enforcement of a non-compete agreement against Dr. Michael Sweeney (“the Sweeney litigation”), despite the absence of any chance of successful enforcement because there was no written agreement. Secondly, the clients alleged that the lawyers committed malpractice by filing a lawsuit to protect Dr. Snyder’s right to continue practicing at a surgery center, despite the absence of any chance of success because Dr. Snyder had failed to exhaust his administrative remedies. In support of their motion, the clients attached numerous documents, including copies of the unsigned non-compete agreement. "
The trial court entered summary judgment against the lawyers on the legal malpractice claims. They appealed. The Corpus Christi Court of Appeals reversed, finding the affidavit of the clients’ legal malpractice expert to be conclusory and, thus, insufficient to support summary judgment against the lawyers: