Henry S. Miller Commercial Company v. Newsom, Terry & Newsom, LLP and Steven K. Terry

Supreme Court of Texas
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No. 22-1143
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Henry S. Miller Commercial Company,
Petitioner–Cross-Respondent,

v.

Newsom, Terry, & Newsom, LLP and Steven K. Terry,
Respondents–Cross-Petitioners

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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JUSTICE YOUNG, joined by Justice Bland, concurring.

Scene: Two lawyers, beverages in hand, sitting in a dive bar after
a jury trial in which Lawyer 1’s client prevailed over Lawyer 2’s:
LAWYER 1: Remember how I said at trial that my client should totally
win because all the facts and all the law were on our side?
Yeah—that was a lie. We didn’t have a leg to stand on!
There is no way we could have won—unless the lawyer for
the other side <cough, cough> really botched it.
LAWYER 2: You told a lie? Hold my beer. I kept saying that my client
should win and was on the side of Truth, Goodness, and
Justice—but that was a lie. We lost and we should have
lost. It would have been crazy for a jury to rule for my side.
Such a conversation would be dispiriting enough if held in private.
But—my liberties with the script notwithstanding—this case involves
essentially that same conversation being played out in a courtroom, after
Lawyer 1 and his client teamed up with Lawyer 2’s client to sue Lawyer 2
for legal malpractice.
I write separately to further address one aspect of the case with
which the Court’s scholarly and well-reasoned opinion grapples: how the
judicial system should respond to cases, like this one, in which a legal-
malpractice claim is not impermissibly “assigned” (and so cannot be
barred), yet still implicates the concerns that led this Court to preclude
such assignments in the first place.
Specifically, the Court focuses on the troubling distortion of
positions reflected in my exaggerated exchange between Lawyer 1 and
Lawyer 2 above. At the underlying trial, Nussbaum and his counsel
argued that Nussbaum should win because the claim against his
opponent HSM, and HSM alone, was airtight. Nussbaum won. His side
now argues (in essence) that the win is explained not by the strength of
the claim, but only by the ineptitude of HSM’s lawyer. Such position-
switching when convenient—which is to say, when lucrative—is more
than troubling. It harms our system of justice and, as the Court notes,
fosters cynicism about the legal profession and about the integrity of the
judgments that result from litigation.
The Court describes one important mitigating tool that a trial court
must deploy in this situation: ensuring “that a jury is fully aware of” the
positional distortion in the malpractice litigation so that the jury will “not
be confused or misled by [the] change of position and financial interest in

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the outcome.” Ante at 3. “Full disclosure of the parties’ positions and
interests in a legal malpractice case . . . is the trial court’s remaining tool
to remedy [the] harm” that flows from “a pernicious distortion of positions
in a legal malpractice case.” Id. at 20. As diluted as mere disclosure may
seem, it at least helps address “the real risk of confusion to jurors hearing
parties taking positions seemingly contrary to their apparent pre-
litigation interests.” Id. at 16.
Transparency has at least some of the disinfecting power of
sunlight. It grants the jury a pinch or more of salt for when it hears new
positions expressed with all the certainty and apparent sincerity with
which the exact opposite positions were previously expressed. Not all
malpractice cases involve these distortions, but when they do, it means
that a jury is asked to reach the result opposite of the one reached by the
jury in the underlying trial—and the second jury is being asked to do so
by a side repudiating its own prior win. In such a case, transparency
allows the jury the dignity of approaching its task fully informed.
But is transparency quite enough to address the position-switching
problem? Barring such a claim would go too far, the Court holds, if the
party who owns it does not formally or practically “assign” it. I somewhat
reluctantly agree. But is there any intermediate step available to the
judiciary, or perhaps to the legislature, that might go beyond mere
transparency while stopping short of preclusion? One possibility might
lie in reconsidering the standard of proof for malpractice cases—not all of
them, but those involving the position-switching the Court describes. If
such cases required a jury to find malpractice not by a preponderance of
the evidence but by clear and convincing evidence, it might at least help

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assure the public that if a jury finds malpractice, the malpractice was
genuine and harmful and not just a post hoc spin by lawyers. A
heightened standard of proof might therefore advance the goal of
preventing the demeaning of the legal profession. It would make it
harder for one to “abrupt[ly] and shameless[ly]” switch positions—moving
from arguing that he won because he had the stronger case to arguing
that he won only because his opponent’s lawyer was negligent. Zuniga v.
Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex. App.—San Antonio
1994, writ ref’d).
The currently prevailing standard of proof, by contrast, allows
parties and lawyers to adduce summary opinion evidence from distorted
positions to predict what a jury would have decided had a case been tried
differently. The Court rightly concludes that the opinion evidence in this
case—that Lawyer 2’s negligence was the sole cause of the fraud
judgment—was conclusory and thus cannot support the verdict even
under the preponderance standard. But the question remains whether
the standard should be higher—perhaps leading not to a remand but to a
rendition in this case, and perhaps ensuring that in other cases only truly
meritorious claims proceed.
The parties have not argued this significant issue, and the Court
rightly does not address it. Nor do I prematurely endorse elevating the
standard of proof—if the issue is put to us directly, perhaps I will be
persuaded by the parties and interested amici that the idea is mistaken.
The preponderance standard has its virtues too, after all, including
giving genuinely wronged parties the necessary leeway to vindicate
their interests against bad lawyering.

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For today, therefore, my goal is modest: to note that it may be
worthwhile to examine the standard of proof in a future case, especially
if petitioner’s warnings about the consequences of not barring this case
from proceeding prove prescient.

Evan A. Young
Justice

OPINION FILED: December 31, 2024

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