Interesting Malpractice Case Based Upon Claiming Work Product Over Pre-Suit Testing

When I speak on ethics, I always say that you never know how issues will get raised.  Things that seem like "academic" concerns turn out to be "gotchas".  This is not quite that, but it is a fun twist.

We all know that Rule 11 requires adequate pre-suit investigation, and, usually, the way breach of those rules get raised is through a Rule 11 motion.


In a legal malpractice case, a patentee alleges that its lawyers' improper designation of testing that he had done as "work product" caused sanctions to be entered against him that, ultimately, reduced his patent infringement damages award.  Haase v. Abraham, watkins, Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75 (Tex. App. — Houston [14th Dist.] no pet. hist.).  The defendants won a partial victory on appeal.  The procedural history of the case involves two appeals to the Federal Circuit, among other things!


About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.