Legal Malpractice Claims Dismissed – Conclusory Affidavit of Plaintiff’s Expert Did Not Constitute Substantial Evidence

Schaeffer and Long, etc. v. Thompson, [Ms. SC-2022-0813, Apr. 21, 2023] __ So. 3d __ (Ala. 2023). The Court (Mitchell, J.; Shaw, Wise, Bryan, and Cook, JJ., concur; Parker, C.J., and Sellers, Mendheim, and Stewart, JJ., concur in the result) affirms the Dallas Circuit Court’s judgment dismissing legal malpractice claims against attorney Jan Thompson asserted by Mary Beasley Schaeffer (“Mary”) and Ellis Beasley Long (“Ellis”). Thompson supported his motion for summary judgment with his own affidavit as well as an affidavit of opposing counsel in the underlying litigation. These affidavits set out in some detail how the three decisions challenged by the Plaintiffs were made in Thompson’s exercise of professional judgment as to trial strategy. Ms. *10.

The Court reiterates “[t]o prevail on a claim of legal malpractice, the plaintiff “‘must prove the same basic elements as in a negligence action: duty, breach, proximate cause, and damages.’” Herring, 631 So. 2d at 1001 (quoting Pickard v. Turner, 592 So. 2d 1016, 1019 (Ala. 1992)). But the plaintiff must also prove that (1) ‘in the absence of the alleged malpractice, the plaintiff would have been entitled to a more favorable result in the legal matter’ and (2) ‘the attorney’s negligence in fact caused the outcome of the legal matter to be less favorable to the plaintiff.’ Bonner v. Lyons, Pipes & Cook, P.C., 26 So. 3d 1115, 1120 (Ala. 2009).” Ms. *7.

The Court concludes that Mary and Ellis failed to rebut the showing made by Thompson because the affidavit submitted by their expert was conclusory. The Court reiterates “bare conclusory facts and statements in an affidavit do not constitute substantial evidence in summary-judgment proceedings. B.M. v. Crosby, 581 So. 2d 842, 843 (Ala. 1991) (citing Nowell v. Mobile Cnty. Health Dep’t, 501 So. 2d 468, 470 (Ala. Civ. App. 1986)).” Ms. **11-12. Finally, the Court holds that Mary and Ellis failed to establish the common-knowledge exception to the requirement of submitting expert testimony “because they have not made any substantive argument that the exception applies.” Ms. *16.

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