Hicks v. Nunnery

Anthony Plaintiff-Respondent, Hicks,

v. Dеfendant-Appellant.† J. Nunnery, Willie of Appeals Court 5, No. 01-0751. Submitted on October 2001. Decided briefs March 2002 WI App (Also 809.) reported 643 N.W.2d † to review filed. Petition plaintiff-respondent, the cause was

On behalf of the of The the brief of Scott Olson on submitted Jeff Jeff Firm, S.C., Madison. Olson Law Scott Deininger, Dykman, Roggensack and JJ. Before Attorney Nunnery ap- Willie DEININGER, J. judgment against peals him in favor of entered Nunnery Anthony jury A found Hicks. client, former representation negligent of Hicks in a in had his been $2,606,950 in matter, it awarded Hicks criminal damages. (1) Nunnery the trial court claims that: judgment grant failing his motion erred (2) judg- notwithstanding verdict; he is entitled to prove failed to his favor because Hicks ment his (3) support innocence; the evidence was insufficient (4) Nunnery jury's causation; and on answers entitled to a new trial because of at trial or in errors alternatively, justice. verdict, or in the interests of reject Nunnery's ¶ 2. We all but one of claims asking error. conclude the trial court in We erred not to determine whether Hicks was innocent of Accordingly, the offenses of which he was convicted. we judgment appealed reverse and remand for a trial on the limited issue of Hicks's innocence.

BACKGROUND legal malpractice ¶ 3. claim Hicks's arose out of Nunnery's representation proceed- of him in criminal ings being in which resulted Hicks convicted and im- prisoned robbery, burglary for and sexual assault. We (Hicks I), in reversed Hicks's conviction State v. Hicks (Ct. 1995), App. 620, 2d 195 Wis. 536 N.W.2d 487 concluding deprived that he had been of effective assis- supreme tance of counsel. The court affirmed our (Hicks II), grounds. decision, but on other State v.Hicks (1996) (concluding 2d 435 Wis. N.W.2d Hicks was entitled to new trial the interests of tried). justice controversy fully the real because was not subsequently spending after Hicks was released more years prison than four and the State dismissed all charges against him. following summary background facts underlying proceeding largely

from the criminal opinion I, taken from our in Hicks 195 Wis. 2d at D.F., female, 623-29. a white identified Hicks her as eight-man days line-up an assailant from two after she sexually apartment. trial, was assaulted in her At D.F. apartment door, testified that she heard a knock on her through approximately peephole looked ten seconds, and man told her that he saw black who was upstairs neighbor. her her The man asked to use telephone D.F.let the man into because his broken. sexually apartment he her her after which assaulted According D.F., and her of the assailant robbed $10. apartment in her 7:25 a.m. and 7:55 a.m. between prior that, incident, this no D.F. also testified black apartment only in her and that male had ever been approximately years once, one-and-one-half the before apartment assault, a female had in her black been stipulated a Hicks he borrow blanket. lived the apartment complex D.F., and same as the two apartments were a 90-second walk from each other. testimony presented 5. The State from state laboratory analyst microscopic that, crime based on Negro1 examination, a head hair found on the com- Negro pubic bed, and forter of D.F.'s four hairs found police sweeping the conducted a vacuum when approximately days apartment fifteen after the assault, samples provided by were "consistent" with Hicks. The analyst also testified that a Caucasian head hair was pants wearing found inside the Hicks was when he was custody forty-eight into taken hours after the assault. pants pants," however, not These were "sweat which is analyst D.F. what testified her assailant wore. The microscopic that, examination, testified based on the sample head hair was "consistent" Caucasian with provided by D.F. analyst explained Negro

¶ 6. The also that all hair shares the same characteristics and all Caucasian hair although Negro characteristics, the same not all shares hair is identical and not all Caucasian hair is identical. microscopic comparison hair, She also testified that employ terminology regarding We the the hair evidence by during criminal trial and рostconvic used witnesses Hicks's just supreme tion as and did in proceedings, we court reviewing previous decisions Hicks's conviction. fingerprints, yield can unlike never a definitive identi- degree fication. She stated that to a reasonable certainty, Negro speci- hair scientific Caucasian respec- mens "could have" come from Hicks and D.F. tively. microscopic comparisons, Other than the performed samples. State no other on the hair tests performed serological testing specimens State on semen, blood and saliva at the crime scene, obtained proved granted but these tests inconclusive. The court Hicks's motion to have the semen sent to an out-of-state laboratory analysis,

for DNA but the results were also inconclusive. guilty

¶ 7. The found and the Hicks court years prison. sentenced him to nineteen sequently Hicks sub- testing obtained DNA of the hairs which had during been introduced into evidence State testing questions trial. The of the results DNA raised guilt. about Hicks's Hicks then filed a motion for a new grounds counsel, trial on the newly of ineffective assistance of evidence, discovered and "in the interests of justice." evidentiary hearing motion, 8. At the on the Dr. Diagnostics of

Charlotte Word Cellmark testified that Negro hair, the hair, Caucasian head the head and two Negro pubic yield specimens of the hair not did suffi- analysis. remaining pubic cient DNA One of the two specimens, presence however, hair the of revealed DNA usually said, indicates, from two sources. This presence Word shaft, of a of on the hair second source DNA presence blood, such as semen or saliva. Because of the DNA, of as to this two sources the test results specimen ex- were deemed inconclusive. Hicks was larger on cluded as the source of the amount DNA specimen, come to a conclusion this but Word could not to the fainter source. as remaining specimen from 9. The DNA was

compared extracted from to the DNA Hicks's blood sample. testified that Hicks was excluded as the Word specimen. opinion from In source of DNA this her degree certainty, a of scientific Hicks reasonable acknowledged not the donor of this hair. Word that this opinion assumption was based on the that the DNA on specimen single a the knowledged was from source. She also ac- prove

that she could not the DNA was from single source, but she stated that was the most conclusion based on In reasonable several factors. ad- dition, she concluded there was no information to suggest single it was not from source. Nunnery hearing

¶ 10. at the he testified that was samples major aware that the hair would be a issue trial, the case. Before he Hicks's knew that the root specimens subjected tissue of hair testing could be DNA laboratories, at certain out-of-state technology and he knew testing. used for that He did not the matter discuss with his client or with the district attorney, petition however, nor did he court have performed. why pursue this test he When asked didn't testing Nunnery hairs, testified that he didn't "strategic do so for that, reasons." He also testified " obviously '[o]ne reason would have been .. . and costs hindsight may just in 20-20 have been a failure to explore technologies hindsight.'" further other these acknowledged I, Hicks 2d at 629. He Wis. that he explore did not the costs of the tests.

¶ 11. The trial court denied Hicks's motion for a new trial. The court concluded that there was no prejudice resulting Nunnery's to Hicks from failure to obtain DNA test results for trial because it was not reasonably probable that a trial new with DNA testimony would result in a different verdict. Hicks judgment appealed, and this court reversed and ordered a new trial. We concluded that conviction had received ineffective assistance of counsel Hicks Nunnery pursue pretrial because failed to available testing specimens of the hair collected from D.F.'s DNA apartment. "probability We reasoned that there was a that, to undermine confidence in the outcome sufficient subject specimens hair but for counsel's failurе to to analysis, the result of the trial would have been DNA different." Id. at 632. Supreme review, 12. Court On Wisconsin grounds that Hicks was

affirmed our decision on the justice." [a] trial in the interests of "entitled new II, that, 2d at 150. The court concluded Hicks Wis. hair a critical issue at because the evidence was such major identification, trial and the issue in the case was results, of identification in view of the DNA "the issue subsequently fully tried." Id. at The State was not 172. against dropped charges Hicks, all and he was released years custody spending prison. in from after over four legal malpractice Hicks then filed a action alleged against Nunnery. complaint, In his Hicks negligent failing Nunnery hair to have the subjected analysis prior specimens trial and to DNA failing testimony possible procure from a alibi also in Nunnery and cross-motions for witness. Hicks filed summary judgment, denied. A both of which were finding Nunnery negligent for both returned verdict testing failure to to obtain DNA and his his failure testimony possible procure witness, alibi damages. Nunnery filed $2,606,950 awarded Hicks it post-verdict trial court motions, all of which the several Nunnery judgment against appeals him. denied.

ANALYSIS HH Nunnery's ¶ 14. We first address claim that the failing grant trial court erred in his motion for (JNOV). judgment notwithstanding the verdict Nun- nery arguments regard. advances two this He first argues three-year that the statute limitations under (1999-2000)2 § malprac- 893.54 Wis. bars Hicks's Stat. nearly years tice action because it was filed six after his Nunnery Second, conviction. asserts that "Hicks failed prove legally cognizable injury" because he did not required distress," establish "severe emotional which is prevail involving negligent in order to on a claim the infliction of emotional distress. 15. We review trial court's denial of a motion judgment notwithstanding novo, verdict de

applying the same standards as the trial court. Lisa R.P. J.W., 132, 140, v. Michael 210 Wis. 2d 565 N.W.2d 179 (Ct. 1997). App. judgment A motion for notwithstand ing accepts findings the verdict of the verdict as true moving party judg but contends that the should have ment for reasons evident the record other than those § jury. 805.14(5)(b); decided Wis. Stat. Greenlee Auction/Realty Co., v. Rainbow 202 653, 661, Wis. 2d (Ct. 1996). Apр. 553 N.W.2d 257 The motion does not challenge sufficiency support of the evidence to verdict, but rather whether the facts found are suffi permit recovery Logterman cient to as a matter of law. (Ct. Dawson, 90, 101, v. 190 2dWis. N.W.2d 1994). App. 2 All references to the Wisconsin Statutes are 1999-2000 version unless otherwise noted. legal malpractice commenced this ac- 16. Hicks nearly years after his 9, 1997, on six

tion December Nunnery argues that, December 19,1991. conviction on damages "primarily" sought for emo- Hicks because governed personal injury, and his claim is tional distress § by provides a three- 893.54.3 That section Wis. Stat. "injuries bringing year for actions for to the limitation reject Nunnery's person." contention and conclude We § governed by 893.53, claim Wis. Stat. that Hicks's is "injury years bring an action for to which allows six rights the character or of another."4 question The of which statute of limitations 17. governs particular of we decide a claim is one law which Acharya 330, 335, 448 Carroll, de novo. v. 152 Wis. 2d (Ct. 1989). App. applicability of the 275 The N.W.2d § six-year of under 893.53 statute limitations Wis. Stat. legal malpractice well Id. at actions is established. juris- in courts, as well as those other 337. Wisconsin legal malpractice dictions, claims have concluded "injuries person," term to the as the is do not involve 893.54(1) used, § statutes, similar Wis. Stat. " bodily inju- 'injuries person' to the connotes because added). "[bjecause (emphasis Thus, no other ries." Id. legal action for of limitations covers tort statute 3 following § "The ac provides: 893.54 Wisconsin Stat. (1) years An commenced within 3 or be barred: tions shall he (2) person. An damages injuries for action to recover by damages for death caused brought to recover action act, wrongful neglect or default of another." 4 § "An action to recover provides: 893.53 Stat. Wisconsin another, not damages injury rights to the character or of for an contract, years 6 after the arising on shall be commenced within accrues, period a different except of action where cause or prescribed, be barred." еxpressly

737 six-year malpractice, 893.53, limitation in sec. applies." Hemberger Id.; Bitzer, see also v. 216 Stats, (1998). 509, 516, Wis. 2d N.W.2d Citing Brah, 18. Estate Kohls v. 2dWis. (1973), Nunnery argues 141, 203 N.W.2d 666 that the applicable malpractice statute limitations action by injuries must determined be nature of the damages sought. plaintiff which are The decedent in allegedly aplastic Estate Kohls died of anemia result ing from her treatment two dentists. Id. at supreme apply issue before the court was whether to three-year "injuries the person" statute of limitations for to the six-year

or the statute of for con limitations malpractice tract actions to the action. The court con apply, stating: cluded the former should malpractice brought While a action can be either in tort contract, or in it an damages action to recover for injuries to person. The word "action" as used in the three-year statute of limitations "... has reference to subject-matter thereof, or nature to its form not as a matter of procedure. remedial Whether it be in tort or contract, on it is an damages action to recover for injuries to the person and comes alike under the terms of the statute ....".. .The appellant option has an as to remedies, but, chooses, whichever route he the 'action (... injuries' for three-year statute of limitations statute) applies. (footnotes omitted). Id. at 144 present alleges legal action, however, " malpractice, 'legal not medical and unlike latter, malpractice injuries personal not and, does cause there- governed by personal injury fore, is not a tort statute of (citation Acharya, limitations.'" omitted). 2dWis. at 337 though plaintiff We conclude that even might testify plead having and suffered emotional lawyer's malpractice, on account of a that distress fact seeking does not convert the claim into one redress for (i.e., "injuries person" bodily injuries). to the The un- injuries derlying legal malpractice in a claim are to rights go plaintiff bеyond, and interests of a or at injuries person from, are different to his or her least § under Wis. Stat. 893.54. reject Nunnery's

¶ 20. We thus characterization injuries being "primarily" personal injuries. as Hicks's "[bjecause alleged complaint in Hicks his [Nunnery's] criminally [Hicks] unlawful actions ... imprisoned, wages, and he convicted and sustained lost injury reputation, to his and mental and emotional compensatory distress, for all of which he seeks dam- ages just by in an amount deemed the Court." Hicks's testimony similarly encompassed range trial broad injuries he claimed to have suffered on account of Nunnery's negligent representation. repu-

¶ 21. Hicks that his character testified and injured tation were rapist. when he was labeled a convicted being prison He that he said was harassed rapist, again upon by people a convicted his release community rapist him in the who would refer to as a charges against dropped. even after all him were He family, impact testified as to the this had on his includ- ing his son who was "ridiculed" at school because of explained rape conviction, and he that he moved Hicks's escape losing his wife and children to Houston order to with the stigma and ridicule. Hicks also testified to wages prison, in he that income while and said his wife's garnished due to failure to meet finan- had been their obligations during Finally, cial Hicks's absence. and obviously, liberty during deprived of his most Hicks was years the four of his incarceration. although injuries short, In which recovery sought him

Hicks no doubt caused emotional distress, it incorrect to label claim for that would be his "injuries "primarily" person" reason as one for to his § meaning Adopting within Nunnery's position Wis. Stat. 893.54. distinguish require would courts alleging legal malpractice "primarily" personal- claims injury-type damages, distress, such as emotional from alleging damages "primarily" type. those some other suggests, separate Or, as he further statutes of limita- might applied need tions to be to different elements damages alleged single legal malpractice in a action. We adopting likely approach either conclude would inconsistency, time-consuming confusion, lead to and litigation Injuries damages over limitations issues. and alleged legal malpractice easily could claims be ways, differing characterized in numerous with stat- arguably applicable utes of limitations are what at Garcia, bottom the same cause of action. See v. Wilson (1985).5 471 U.S. 272-75 holding single In that a characterization apply should § all 42 U.S.C. 1983 purposes, claims for limitations the Su (1985) Garcia, in Wilson v. preme Court 471 U.S. 261 stated: depend upon If the choice of the statute of limitations were to particular precise legal theory claim, facts or the of each counsel always force, argue, could almost with considerable two or periods apply § more of limitations should to each 1983 claim. Moreover, approach under such an different statutes of limitations applied arising § would be various 1983 claims in the same State, multiple periods apply of limitations would often to the same case. (footnotes omitted). Id. at 273-74 summary, ¶ 23. In we conclude that the fact that Hicks claimed to have suffered mental and emotional a result of his and distress as conviction confinement legal malpractice does not remove Hicks's action from § scope six-year of 893.53. The broad Wis. Stat. applies against limitations claim statute of to Hicks's Nunnery, denying and the trial court did not err in Nunnery's ground.6 JNOV motion on this Nunnery

¶ 24. next contends that he was entitled prove legally cogni- to JNOV because Hicks "failed to injury." again argues zable He that Hicks's evidence of damages "principally the emotional distress he claimed to suffer" as result his conviction prison Nunnery in sentence. claims that order to re- any damages, prove cover it was incumbent on Hicks to Nunnery's distress," which, view, "severe emotional in Nunnery any Hicks failed to do. cites the lack of "psychological psychiatric testimony or submitted evi- dencing devеlopment of neurosis" and the lack of related to the emotional "evidence loss function Nunnery acknowledges distress." that Hicks testified repeatedly prison, he cried and that he while safety family during feared for his and that of his own incarceration, his but notes that Hicks also testified § applies Given our conclusion that Wis. Stat. 893.53 action, argument need that even if this we not address Hicks's three-year applied, of limitations his action would statute begin to run until period not be barred because the does not his See, State, e.g., conviction was overturned. Shaw v. 816 P.2d (Alaska 1991) ("[W]e conclude the statute of legal arising out of criminal malpractice limitations on actions proceedings begin post-conviction not to run until after the does obtained."). relief has been engaged prison recreation, he such as

that while in playing dominos and basketball. accept Nunnery's assertion that in order 25. We directly specifically compensable in a tort

to be Wisconsin, action in emotional distress must be "se Co., vere." Bowen v. Lumbermens Mut. Cas. 183 Wis. 2d (1994). other ele 627, 652-53, 517 N.W.2d 432 While required damages ments once to recover for emotional longer (e.g., distress are no needed intentional inflic injury physical being tion, manifestation, a a or in "zone danger"), requirement of emotional distress be any recovery may severe before had Id. at be survives. Many impediments recovery 653 n.23. of the former to a longer necessary for emotional distress are deemed no prevent severity require claims, fraudulent but persists in ment order to ensure that life's "minor disturbances" not be occasions for lawsuits. See id. at 639.

¶ 26. "Severe emotional distress" ‍‌​‌​‌‌‌‌​‌‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌​​​​​​‌​​​‌​​​​‍has been defined as follows:

The plaintiff must demonstrate he suffered an disabling response extreme emotional severity injury conduct. The is not defendant's only recovery, to the of relevant amount but is a necessary any recovery. element to plaintiff The must that he unable to function in other demonstrate was his because of the emotional relationships distress cаused Temporary defendant's conduct. discomfort cannot recovery. be the of basis Gehl, 349, 360-61,

Alsteen v. 21 124 Wis. 2d N.W.2d312 (1963). explained This court has that "severe emotional anxiety quantity distress enduring quality or such substantial person

that no reasonable could be 742 expected Jacobson, it." Evrard v. 117 2d to endure Wis. 1983). (Ct. App. appel 69, 73, 342 788 Several N.W.2d presence expert testimony note the late decisions severity supporting plaintiffs of a the record as distress, but we are aware of none that emotional testimony require expert legal prerequisite aas for recovery. e.g., See, Mosher, La Fleur v. 2dWis. (1982); 114, 325 N.W.2d 314 Estate Plautz v. Time (Ct. App. 136, 155, 2d Co., Ins. 189 Wis. 525 N.W.2d 1994). fourteen-year-old girl La Fleur involved City negligent sued the of La Crosse for infliction of

who jail after she held in a cell emotional distress food, some thirteen hours without water and blankets. psychiatrist diag- supreme noted that a had court plaintiff having nosed the "as suffered traumatic confinement," Fleur, as a result of the La neurosis reaching at but in its conclusion that her Wis. 2d though action could maintained even she suffered no be injuries, "negligent physical the court observed that by very special its nature has the confinement.... causing emotional dis- likelihood of real and severe explained Id. at 119. The court further that tress." confinement, [b]y very the fact of under facts like here, person's right set forth to be free from those bodily infringed. liberty of deprivation restraint is This alone, distress, it causes serious emotional is a when wrong sufficiently worthy physical of that the redress necessary. injury requirement should not be When deprivation there is a substantial and unwarranted guarantee liberty, that itself is a sufficient deprivation not and that "it is more that the claim is frivolous fact, did, suffer probable plaintiff very alleged." It nature emotional distress that creates the likelihood of emotional confinement harm, injury. appropriate Emotional in the circum- stances, reasonably consequence is a foreseeable negligent confinement. omitted). (citаtion although Thus,

Id. at 120 the court psychiatric opinion establishing cited the as severe suggests wrong- distress, emotional its discussion ful confinement in and of itself is evidence of a com- injury. pensable emotional conclude, however, 28. We that it is not neces-

sary for us to decide made a whether Hicks damages sufficient showing to recover for emotional distress quite simply, specify because, was not asked to damages special for emotional distress. The verdict only single, general damages form included question: money, any, fairly amount of if "What will reasonably compensate Anthony Hicks for the damages he sustained as a result of his criminal convic- pro- tion and incarceration?" The relevant instruction guidance, informing vided additional little save for jurors by that their not answer should be influenced sympathy by requests by resentment, or nor made counsel unless sustained the evidence. See Wis Nunnery objected ques- JI — Civil to neither the request instruction, tion nor the and he did not addi- regarding necessity tional instructions for or a definition of "severe emotional distress."7 During closing arguments,

¶ 29. Hicks's counsel specific figures wages cited dollar for Hicks's lost while prison postconviction attorney and for the fees he big incurred. Counsel then discussed "the item of dam- ages," impact which he characterized as "the emotional having wrongfully on Mr. Hicks of been convicted of a 7 See, e.g., Wis JI —Civil 1770. injury having spent

crime . . . and emotional him of years prison almost five that he didn't deserve." "compensation Counsel later referred to for the humili- anguish being ation and convicted of crime he never committed." Thus, 30. while it is clear that the emotional

impact consequences suffered Hicks was a factor in the manner in which the case was tried and argued, general damages we cannot conclude that the any subpart verdict, or identifiable of it, was for "emo- present expert distress," tional such that a failure to testimony regarding severity its would be fatal to the general damages award, verdict. on based arguments presented jury, evidence and to the encom- passed out-of-pocket amounts as well as non-economic regard although latter, losses. With to the some notion undoubtedly component of "emotional distress" was jury jury compen- awarded, what the was asked to injury good reputa- sate Hicks for the to his name and four-year liberty, tion, and for his loss of which are injuries right regard in their own without to whether they also caused Hicks emotional distress. summary, In because the was not asked damages specifically distress, award for emotional injuries

and because other than to Hicks's emotional well-being argued jury, were established and to the Nunnery judgment notwithstanding is not entitled to a any jury's part prove verdict for failure on Hicks's Nunnery's he suffered severe emotional distress. arguments speak on this issue as much to his conten- damages excessive, tion that the verdict was a conten- tion we address below.

II. Nunnery's that next address contention 32. We prove his Hicks failed to we must reverse because summary judgment Nunnery innocence. moved required asserting, among things, other that Hicks was prevail prove a innocence in order to on claim for his arising legal malpractice representation in a from motion, court denied the criminal matter. The trial concluding necessarily prove that Hicks "need not prove that, in order absent he is innocent [Nunnery's] negligence, he would have won his case convicted)." (i.e., Nunnery he not have been that would pretrial again claim in a motion and in his renewed the post-verdict denying for a trial. In the motion new again the court concluded that motion, new-trial Wis- actually require plaintiff that the consin law "doesn't prevail."8 disagree. prove he innocent in order to We legal malpractice, prevail To in an action for (1) lawyer- plaintiff prove a a must four elements: (2) relationship existed; client the defendant committed (3) constituting negligence; the acts or omissiоns (4) attorney's negligence plaintiff injury; caused the injury. the nature and extent of See Lewandowski v. Co., 271, 277, Continental Cas. 88 2d 276 Wis. N.W.2d (1979). legal 284 The last two elements a claim for malpractice arising representation out of civil most require plaintiff prove often "suit within suit" jurors following The verdict asked to answer Anthony guilty Hicks have been found not question: "Would negligence absent of the defendant?" The court instructed prove it burden to that "but for the was Hicks's negligent Nunnery's part, acts or on Hicks "would omissions" guilty charges brought against him." not have been found " by showing negligence that, 'but for the of the attor ney, pros the client would have been successful underlying ecution or defense'" civil action. Id. (citation omitted); Cook v. Continental Co., Cas. (Ct. 1993). App. 237, Wis. 2d 249-50, 509 N.W.2d 100 question injury The before us is whether the cause and malpractice stemming legal elements for a claim from representation in a criminal case should be defined in way representation the same as for in civil matters, or something required. whether more is ¶ 34. We are that, mindful in Wisconsin, a negligence only, defendant's need not be the or even the primary, plaintiffs injury cause of a in order for the plaintiff damages. plaintiff may to recover Rather, a negligence recover if" 'the defendant's was a substantial producing injury.'" factor in the Morden v. Continental Ag, ¶51, 60, 2000 WI 325, 235 Wis. 2d 611 N.W.2d659 (citation omitted). jury's finding that Hicks would guilty Nunnery's negligent have been found not absent representation Nunnery's negligence establishes that injuries. was a "cause-in-fact" of Hicks's That is not the inquiry, end of however, the inasmuch aas court must explore public policy may then preclude whether considerations imposition liability.

the of Id. As we discuss in paragraphs policy the follow, which we conclude that preclude imposition liability considerations the un charges less Hicks can establish his innocence of the which he was convicted. prove

¶ 35. For his contention that Hicks must that he was innocent in order to recover on mal his practice Nunnery part, following claim, relies, in on the passage Bowe, from Harris v. 178 Wis. 2d (Ct. 1993): App. N.W.2d 159 "To supreme

As noted the court: establish causa- action, in a the injury legal malpractice tion and compelled prove equivalent the plaintiff is often to single proceeding. requires cases in a ..This two that, negligence for the plaintiff prove but attorney, been in the plaintiff would have successful case, means had present lawsuit. In the this that Harris reckless prove degree that he was innocent of first Harris, however, charge. voluntarily pleaded homicide and, therefore, charge precluded from guilty satisfying legal malpractice action the elements of a against Bowe. (citations added). emphasis omitted, at 868

Id. conclude, however, that cited lan- We controlling. guage from Harris is not Earlier plaintiff opinion had not Harris we concluded that attorney negli- established that his defense had been unnecessary go gent, and it have for us to would been ("If jury Cook, further. See 2d at 250 the Wis. lawyer [the] the fulfilled of determines that standard case."). that the Our of care, ends consideration prove plaintiff the in could the remain- whether Harris malpractice ing a claim dicta. elements of was thus plaintiff in Moreover, our focus was not on what the prove trial, Harris have had to at on the fact would but by "voluntarily charge," plead[ing] guilty he that essentially estopped alleging harmed was from he was attorney's negligence. by his suggest a comments in Harris Our plaintiff guilt who admitted should not heard to has be attorney acquit- claim that should have obtained an his tal, but circumstance is not before Hicks has us. consistently charges maintained innocence of of his guilty. question he The which was found is whether jurors obliged Hicks was to convince the civil of his merely innocence, or, concluded, as the trial court guilty show that he have would been found not at the question directly criminal trial. The been has not ad- dressed a Wisconsin court.9 Nunnery ju- ¶ 38. cites several cases from other proof require risdictions which prove of innocence in order to injury legal malpractice causation of in a action arising example, in a criminal context. For the Massa- Supreme Aiken, chusetts in Court Glenn v. 569 N.E.2d (Mass. "[cjourts 1991), generally noted that have required prove that a former criminal defendant his charged of innocence the crime as an element of his negligent claim that his former trial counsel in defending him." The Id. at 785. court noted the distinc- malpractice arising representation between tions from opposed only in criminal a as to a civil matter: "Not problem differing proof, there the burdens of but public policy considerations also differ." Id. at 788. Regarding former,- the court if a observed that plaintiffs only burden is to show that criminal acquitted, attorney would have tially the defendant is essen- proving faced with "that former his client was 9 The U.S. Appeals Court of for the Seventh Circuit has Bowe, v. concluded, Harris relying on comment our 178 Wis. (Ct. App. 1993), 2d 505 N.W.2d 159 that Wisconsin has adopted general requiring rule criminal former defendant legal prove malpractice innocence in order to recover on Thorie, (7th 2000). claim. Saecker v. 1010, 1013-14 234 F.3d Cir. Saecker, presenting however, involved possible issue tolling six-year legal Wisconsin's statute of limitations malpractice, legal not the elements of a claim for proof in a malpractice proof criminal context. The court's mention of a discussing of innocence when what requirement Wisconsin "might regard courts hold" with to the statute-of-limitations in Saecker than it was dispositive issue thus no more Harris. persuad-

guilty beyond doubt," instead of a reasonable by preponderance ing of the evidence a a regard- prior action have lost client would former attorney's representation, any negligent as is the of less action. Id. at is a civil within a suit" if the "suit burden policy the com- court noted issue, the On the 787-88. person monly expressed has commit- who view "that from his to recover not be entitled a crime should ted tantamount counsel," would be defense which former indirectly "rewarding at 788. crime." Id. him for his Supreme Court, a thor ¶ The California 39. opinion, ough reached the same and well-reasoned malpractice" noting cases, "the in "criminal result, ques majority have considered of courts that clear proof require an addi as of actual innocence also tion Diego, Wiley County 966 P.2d San element." v. tional (Cal. 1998). length the discussed at court 983, 985 differently treating policy public considerations legal malpractice plaintiffs arise from claims whose opposed a civil representation in a criminal as policy briefly con some of summarize context. We persuasive inform and which find to be siderations we disposition appeal: of this our " pur- 'Permitting a convicted criminal 1. proof requiring legal malpractice claim without sue a public conscience, en- . . shock the innocence would. generally disrespect gender discredit for courts omitted). (citation justice.'" Id. at 986 administration plain- guilty Allowing recoveries to 41. 2. civil responsibility "impermissibly for the crime shifts tiffs omitted). (citation "Regard- away Id. from the convict." attorney's negligence, guilty defendant's less of consequence of direct and sentence are the conviction [w]hile perfidy.. [Therefore,] his own . . a conviction predicated incompetence may erroneous, on be it is not unjust." Id. at 987. " only provides damages

¶ 42. 3. 'Tort law plaintiffs legally protected to interests, harms liberty guilty the guilty aof criminal is not one of them. The may acquittal

criminal be able obtain an if he to represented, skillfully right he has no but to that (just right jury nullify result he as has no have the to that)Id. juries though law, sometimes do at (citations omitted). 990

¶ 43. 4. Even in where link cases be- causal attorney's negligence tween an and a erroneous client's (such imprisonment is most where obvious as attorney bring clearly to a fails meritorious motion to suppress guilt, evidence that establishes which the it), prove recovery by state could not without civil guilty plaintiff is "the not warranted nаture because and function of the constitutional substructure of our justice system." criminal at is, Id. 987-90. That such justice system features of the criminal as state's guilt prove beyond burden doubt, reasonable exclusionary rule, safeguard

and other protections constitutional are to against wrongly conviction of the accused and to vindi- They cate fundamental are values. not intended to any confer direct benefit outside the context of the Thus, justice system. negli- criminal defense counsel's gent failure utilize them secure an or acquittal a guilty give dismissal for rise to defendant does not liability. civil

Id. at 988-89.10

10 (N.Y. also, Carmel Lunney, See v. N.E.2d 1987) ("[C]riminal prosecutions pro- involve constitutional and legal malpractice in a

¶ 5. Unlike victims except a have no redress context, most often civil who attorney, negligent wrongfully recovery con- from the opportunity to have the criminal defendants victed rectify wrong by asserting Sixth Amendment the their right "Not assistance of counsel. Id. at 989. to effective right, any only guarantee does this the Constitution array through postconvic- lapse can rectified an of be including corpus. appeal and remedies, tion habeas clearly guilty those as relief is afforded even to Such resulting incompetence long they and as demonstrate prejudice . Id. .. ." reasoning the Su find the of California We

preme have that of other courts which Court, and say persuasive. result, the We cannot reached the same reasoning Wiley, in of 966 P.2d of the the dissent same (Mosk, dissenting), J., or that of some courts at 992-94 legal malpractice the of that have concluded elements regardless malpractice not the differ of whether should in a or civil Some little more arises criminal context. do explanation why no of to the conclusion with than state many policy led courts to considerations that have requirement wrong adopt are or "actual innocence" Kinney, improper. e.g., See, 1058, Krahn 538 v. N.E.2d 1989).11 (Ohio only tan- 1061 Others discuss issue designed safeguards intеgrity to maintain cedural system protect to defendants from over- judicial and criminal reaching governmental aspects pro- criminal actions. These of policy ceedings malpractice unique, make criminal cases require pleading different and substantive considerations rules."). Kinney, precise Krahn v. 538 N.E.2d issue (Ohio 1989), needed to first obtain plaintiff was whether grounds ineffective of a criminal conviction on the of reversal bringing a action malpractice of counsel before assistance gentially addressing while statute-of-limitations issues. O'Rourke, See Gebhardt v. 510 N.W.2d 905-07 (Mich. 1994).12 46. Because we are persuaded public policy

requires position Hicks's plaintiff prove he is innocent of the he charges which was convicted in claim order on a prevail legal we malpractice, conclude that the trial court erred in instructing the jury that burden prove Hicks's "but for only [Nunnery's] omissions, acts or negligent [Hicks] would not have been found guilty charges brought him." entitled trial against Nunnery thus to a new at must which Hicks convince five-sixths of the civil ju- against her former defense counsel. Id. at a require 1061. Such ment, labeled an requirement, gener sometimes "exoneration" ally obtaining involves a of an reversal erroneous criminal conviction, by acquittal either drop followed an or the state's charges, of a ping prerequisite filing proving as either or a legal malpractice arising valid claim from representa criminal See, (Tenn. Trant, 103, v. e.g., tion. Gibson 58 S.W.3d 108-16 2001). Because Hicks the obtained "exoneration" in criminal filing malpractice against Nunnery, courts before his claim it is necessary precondition not for us to decide whether that was a filing either of recovery the his action or his ultimate of damages Nunnery. from 12 above) (see 11, Whether exoneration note is required suit may impact application before is commenced the of the O'Rourke, of statute limitations. See Gebhardt v. 510 N.W.2d (Mich. 1994). 900, discussed, 905-07 As we have because Hicks years conviction, commenced his action within six of his we need not decide the of action accrue whether cause did not until Hicks obtained a reversal of the conviction.

753 by preponderance evidence, he a that did rors, he was convicted.13 not commit the offenses of which Wiley, P.2d at 991. See 966 atypical an series of not a case where 47. This is to a a defendant's acts or omissions events connects thereby "case-by-case," inviting plaintiffs the harm, public policy analysis con- the dissent which six-factor e.g., apply See, Luecht, v. cludes we should here. Steffen App ¶ 38, 475, 2d 713 56, 233 Wis. 608 N.W.2d 2000 WI (noting "require the factors consider- that four of six any, negligent linkage, if act ation of the between harm"). resulting Thus, that much of and the we believe "proximate "fore- of cause" and the dissent's discussion seeability" public policy question irrelevant present presented facts. adoption a also note that rule We liability policy imposition public

precluding on grounds for claims is inconsistent an entire class of not e.g., Bignell, See, tort law. Walker v. 100 with Wisconsin (1981) ("[W]e 266-67, 2d ... Wis. N.W.2d policy, directly public that, as matter of declare Although motion the circuit court post-verdict his sought only a trial regarding the "actual innocence" issue new ground, Nunnery the record appeal on that contends on that conclusively he is inno prove demonstrates that Hicks "cannot pretrial ruling disagree. cent." We Given the circuit court's that prove only guilty, he not have Hicks need would been found effect, controversy" the "real and its instructions do not whether Hicks committed offenses was not tried. We difficulty facing plaintiff position underestimate the in Hicks's Nonetheless, attempting negative." a for the reasons "prove to discussed, do so have we conclude that it is his burden to we damages Nunnery, to from and further that he order recover given in opportunity properly be to convince a should jury innocence. structed of his municipalities exposed should ‍‌​‌​‌‌‌‌​‌‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌​​​​​​‌​​​‌​​​​‍be .not to common law liability present under the circumstances in this case ['injuries by vegetation obscuring caused uncut motor- intersections']."). highway ists' vision at Our conclusion public policy, persons here is similar: as a matter of actually who they commit the criminal offenses for which permitted

are convicted should not be to recover damages legal malpractice from their former de- attorneys. fense Finally,

¶ 49. we observe that the dissent seem- ingly acknowledges upon that "X factor" which, in judge impose view, its a should decide whether to or preclude liability probability plaintiffs is the declaring innocence. We are much more comfortable inquiry properly delegated a one, be factual jury being in all cases, rather than decided a judge judge's impression after verdict based on the guilty plaintiff appears how or innocent the to be. Both prospective plaintiffs and defendants will be a better position potential malpractice to evaluate a criminal plaintiff claim if it is clear from the outset that the establishing hears the burden of actual innocence an as leaving claim, element of the rather than the outcome depend in all such cases to "Xon factors." emphasize question 50. We a plaintiffs innocence is in to, addition a for, not substitute jury question regarding plaintiff whether the would guilty neg- have been found not absent the defendant's ligence. negligence A defendant's must be found be plaintiffs present cause-in-fact of the harm, and in the attorney's negligence context, this means that the must still be found to have been a substantial factor contrib- uting plaintiffs Although to the conviction. instances may rare, be it is that a conceivable could conclude plaintiff offense, but that he or commit the did not prop- if convicted even have been

she would nonetheless example, erly represented occur, for trial. This could at presented highly inculpatory is to evidence where jury through counsel, and no fault of defense criminаl leading refuted, recanted or that evidence is thereafter plaintiff, malpractice jury al- conclude that the the though even if have been convicted innocent, would inconsequential other, errors had not committed counsel damning evidence.14 unrelated to the addressing Nunnery's remaining ¶ 51. Before aspects regarding of the trial and of error other claims on the whether a new trial verdict, we must consider any setting aside innocence necessitates issue of Hicks's parts not. conclude that it does other of the verdict. We court, when Both the trial court this 52. empowered ordering limit the trial, are issues a new Wintersberger Co., v.Pioneer Iron & Metal to be retried. (1959) ("The power 69, 76, 2d 136 6 Wis. 94 N.W.2d appellate limit the on trial and court to issues undisputed."). If a orders a new trial court retrial is regarding limit the issues whether to trial, its decision discretionary, only it retried and we will disturb to be erroneously Equip., Kenwood if exercised. discretion is 472, 485, 180 N.W.2d Co., Inc. v. Aetna Ins. 48 Wis. 2d (1970). court has denied However, where a trial 750 post-verdict the court did trial, for a new as motion authority independent may our here, we exercise 14 concluding, be similar to a court This conclusion would counsel, of ineffective assistance of postconviction on a claim deficiently but that performed that defense counsel had defendant. See prejudice did not performance deficient (1984). 668, 466 U.S. 693-94 Washington, Strickland v. tp determine whether limit issues on retrial. Olson Co., 106, v. Milwaukee Auto. Ins. 266 Wis. (1954).

N.W.2d court set out in supreme Kenwood the standard for whether to limit issues on determining retrial: generally grant

The court partial will new trial error, trial, when the or reason for the new is confined entirely separable one issue which is from others and it is danger clear that there is no perfectly complication, or only where error a trial relates to a certain in way dependent issue which is no for its proper trial on other issues and as to such other issues there may was no error. In order that a trial partial new ordered, clearly be it appear must that the effect of the tried; error did not extend to all the issues it where appears may issues, that the error have affected all the the conclusion of law follows that there must abe trial, and, error, complete new an where while ostensi- bly relating only, to one issue is of such a character as to others, prejudicial have a effect on the a full retrial should be had. Although only, an error affects one issue a new trial , granted

on all issues should be where this will best justice. subserve the ends of

Kenwood, 48 Wis. 2d at 485-86 66 C.J.S. New (citing Trial). The supreme court this standard Just applied 574, 582-84, v. Misericordia 2d Hospital, Wis. (1974), N.W.2d 369 and ordered a limited retrial after the trial court had its discretion." concluding "abused The court noted that issue of causation is sepa- "[t]he rable from the issue of and we damages danger see no of' confusion, or if the complication, prejudice, new trial is limited to the issue of Id. at 583. liability." The here. reach a similar conclusion 54. We impacts conviction and of Hicks's

financial and other imprisonment question separable from the are charged offenses, he committed the whether only affects the latter issue. in the first trial error damages set aside for some award of must be Unless the question below, see no we consider we reason, other retry damages in order to "subserve issue need to justice." Kenwood, 48 Wis. 2d at 486. the ends of the issues of also conclude 55. We Nunnery's negligence to Hicks's and its contribution question separable from the of Hicks's conviction are Nunnery's repre- questions of whether innocence. professional norms, and if Hicks fell sentation of below negligence a substantial factor so, whether guilty logical contributing or verdict, have no to the evidentiary relationship actu- to whether Hicks direct ally question. The former committed the offenses Nunnery questions or did do at or on what did not focus 1991, latter trial in December while the before the exclusively did or did not do on relates to what Hicks 15, 1990. November Accordingly,

¶ limited to the issue of 56. retrial is hе committed the offenses of which was whether Hicks convicted.

HHI—IHH Nunnery the trial court 57. next claims change denying to a verdict answer erred in his motion Specifically, he a in his favor. or to direct challenges verdict jury's finding not have that Hicks would the Nunnery's guilty negligence. A mo- found absent been

758 change jury's tion for a directed verdict and to one the question challenge answer ciency a suffi- to verdict both the may granted evidence, of the and neither be considering the court cred- that, "unless is satisfied all ible evidence and reasonable inferences therefrom light party against the most to favorable whom made, motion no is there is credible evidence to sustain 805.14(1). § finding party." a in favor of such Stat. Wis. foregoing applies standard to both the trial consideration of the motion court's and this Nunnery appeal. Thus, court's review on faces the heavy convincing there burden us that is "no credible jury's finding. support evidence" to Weiss v. United Co., Fire 365, 388, and Cas. 2d 541 753 Wis. N.W.2d (1995). duty precisely Our is to search the to find record accepting evidence, such all reasonable inferences jury. Family drawn Group, American Heideman v. Ins. (Ct. 2d 863-64,

163 Wis. 473 N.W.2d 1991). App. support And, if find we credible evidence to " arguably may it verdict, fact that be 'contra contradictory stronger dicted and the evidence be and convincing, more nevertheless the verdict... must (citation omitted). Weiss, stand.'" 2d at 197 Wis. Nunnery prove ¶ 59. contends that Hicks failed to Nunnery's relationship that there between was causal testing hair failure to obtain DNA evidence and "obligated He Hicks Hicks’s conviction. claims that certainty show to reasonable that he would have testing" simply [DNA] "[t]here had no access [an expert] evidence in the record that actually performed would have testing DNA on the in ... evidence conclude, however, the criminal Hicks case." We there credible evidence in record from which was testing that was have found that could Nunnery postconviction and was available

obtained prior In an affidavit which tо the criminal trial. Hicks malpractice trial, into at the was introduced Nunnery evidence (1) prior he to Hicks's admitted: learned testing of the hair evidence criminal trial that DNA through conducted out-of-state Hicks's case could be (2) testing of laboratories; that he failed to have DNA prior samples trial; hair done root of the tissue (3) request he a continuance so that that he failed to (4) testing; and that he failed to discuss could obtain testing possibilities of such with Hicks. that the DNA Dr. of Cellmark testified 60. Word community "widely testing in the scientific was known" prior that, had she criminal trial. She said to Hicks's attorney prior to Hicks's contacted a defense been being testing such was trial in and asked whether country purposes, had for forensic she done in the laboratory perform- knowledge in California was that a using commercially ing testing at the time such available kit: Blake, of Science that Dr. Edward Forensic

We knew Richmond, doing PCR Associates in California was DQ kit using initially Alpha testing precursor commercially kit. and then the available laboratory, in our generally ... was known [I]t Blake, that he was people had that knew Ed since we actively in it doing testing. He had been involved PCR actually in the years. He had testified for a number DQ testing I believe in either '85 using Alpha first case Pennsylvania had been '86 in the state of or cases, one of high profile other involved several Illinois, Gary case from which being the Dotson which testing was post-conviction the first case wherein done of DNA and demonstrated that he was excluded as alleged the individual who had committed what was be a crime at the time. reject Nunnery's suggestion

¶ 61. We thus that it produce testify was incumbent on Hicks to Dr. Blake to testing performed he that would have 1991 and regard would have testified at the criminal trial with testimony excluding Dr. the DNA result regarding Hicks. Word's availability testing, together of such with Nunnery's acknowledgement it, his awareness constitute credible evidence from which the could reasonably testing infer that the could have been ob- tained and introduсed at the criminal trial. as evidence Nunnery argues

¶ 62. next that because the DNA positively test results do not exclude Hicks as Nunnery's procure hairs, of the failure to source testing prior to the criminal trial was not cause jury's Nunnery guilty criminal verdict. labels Dr. Word's testimony that Hicks was excluded as the source of one "qualified" of the hairs as her because conclusion rested assumption single on the the hair came from a testimony Dr. in more source. We thus review Word's detail. people "DQ 63. She testified that all have two

Alpha Alpha types types." DQ are 1.1 and victim's Alpha types DQ 2. Hicks's are 1.2 and 4. The of hair sample Thus, 1.1 and 4. number were Hicks was sample excluded as the donor of this hair if its DNA single that, came from a opinion, source. testified in her Word certainty, degree ato reasonable of scientific sample single the DNA this did come from a source. questioned explained further, When she that DNA was only found on the root of the hair and not the tissue "genetically only person can have one be shaft. Since we the source of a hair" and the "hair root would be the from," came that that hair

DNA from the individual hair from a to conclude that the Word was able given Alpha types, single and, DQ source, person was not Hicks. reject Nunnery's suggestion

¶ 64. thusWe "assumption" it somehow the on which was based expert testimony the that Hicks was renders incredible sample. hair To the extent excluded as the donor of the expert's opinion "qualified," that, if it was the was it was assessing weight jury in the a factor for the to consider credibility testimony, expert's of the and not a basis Nunnery's a in favor. See Meurer v. for directed verdict 438, 2d Controls, ITT Gen. 90 Wis. 280 N.W.2d156 (1979) ("The weight credibility of and the witnesses judgment given testimony to their are left to the the ."). jury. . Nunnery presence that "the of a 65. also asserts prove

hair from someone other than Hicks does not victim's] apartment." [the Hicks may never While this jury true, be and the could have reached that conclusion, "where more than one reasonable inference [we] accept evidence, can be drawn from the must jury." inference drawn Id. The victim testified at prior assault, criminal trial to the sexual no that, person apartment, had in her aside other black been briefly years from a woman who had been there two attorney represented postcon- earlier. An who Hicks malpractice proceedings testified at the trial viction "depended incredibly upon case State's testing hairs have been hairs" and that would "extraordinarily potential important" had the as it eliminating Hicks as the source of the hairs. We con- excluding a clude that the DNA evidence Hicks as provided from evidence of the hair substantial source reasonably jury malpractice could in the case which had the not have convicted Hicks would been infer that criminal trial. at Hicks's been introduced evidence Nunnery Finally, that the absence of claims Tracy testimony possible witness, Connor, alibi from proof' malpractice "is a fatal failure of at the trial Nunnery's procure regarding failure to Connor whether Nunnery conviction. to Hicks's as a witness contributed argues at the even if Connor had testified further that testimony malpractice would not have estab- trial, his complete and thus would have Hicks, alibi for lished of harm. How- to establish causation been insufficient required to find causation with ever, the was not Nunnery's alleged negli- aspects respect to both gence.15 contains conclude that the record Because we Nunnery's finding support a that evidence to sufficient testing samples a of the hair to obtain DNA failure guilty against producing a verdict substantial factor "yes" jury's stand. on causation must Hicks, the answer the as follows: The court instructed Attorney- plaintiff to either act that must show causation as The Nunnery allegedly did or failed to do. Nunnery Attorney negli- Specifically, to the claim that as testing hair gently DNA on the to hair root tissue failed obtain that, scene, plaintiff the must show found at the crime evidence evidencе, Attorney Nunnery's the failure to obtain that but for charges brought guilty plaintiff found of the not have been would Nunnery negligently him, Attorney against or as to the claim that Connor, testimony Tracy plaintiff must failed to obtain Nunnery's that, Attorney failure obtain but for show guilty evidence, of the plaintiff not have been found would him, charge[s] against plaintiff that but for the or must show plaintiff have been found would combination of these failures the guilty charges against him. not Nunnery's decide, We need not therefore, whether fail- procure testimony ure to Connor's also contributed to jury's guilty the criminal verdict.

IV Nunnery appeal ¶ 67. concludes his awith series arguments claiming his a trial, entitlement new persuades grant but none us to one on the cited grounds. "perverse," He first claims that the verdict is essentially but basis this claim is damages excessive, award was which is the second basis alleges reject he warrants new trial. We both claims. damages The trial court refused to reduce the awarded or to order a trial new because of an excessive award, position and it was in a better than we to evaluate the supporting supreme award and the evidence it. explained court has the standard for our review: response Where in to motions after verdict a trial fully court damages reviews the evidence as to excessive, concludes that the award or is not the sole question appellate on review is whether this determi- nation was an abuse of discretion. On review this court must, court, like the trial light view the evidence in the plaintiff. most favorable to the Where the trial court's analysis of the upon evidence which it approves or rejects jury's damage award is complete, the review- ing court need not review the entire record aas matter impression whether, of first and ascertain judg- its ment, Instead, the verdict is excessive. this court will only review evidence to the necessary extent determine whether the trial court abused its discretion. Koele v. Radue, 2d 583, 587, Wis. 260 N.W.2d 766 (1978) (footnotes omittеd). ruling denying Nunnery's 68. The trial court's

challenge damage following to the award included the comments: this, brings damage question, to the and

That us ques- hardest of all. The my opinion, question is the a rate of are does the award of million reflect $2.6 tions beyond and it shock compensation that's reason does the any relationship its lack of the conscience Frankly, shocked, I'm and established at trial. evidence I can I'm separate I don't know whether whether judge. or shocked as a I have to tell person shocked as the you quite some time over I've been shocked outrageous compensation that vari- seemingly rates of society earn.... The law is clear. people ous this verdict, give disagree that doesn't Just because I with authority modify me the it. here, again regard- that was returned verdict it, it agree or not I with does have some

less whether at trial.... relationship to the evidence Now, placed upon burden that's the circuit an considering or not a claim is court when whether alone is excessive verdict is substantial. Excessiveness I perverse, to label a verdict and have not sufficient support the record for a reasonable basis to searched record establishes that damage award. The convicted of the sexual assault. He was plaintiff was being years. four-and-a-half He feared imprisoned for although he never was. He worried prison assaulted in injuries. He family. physical He suffered no about his psychiatric psychological or or tes- offered no medical damages, and he offered no timony support children, father, or testimony from wife or his his his damages. Significantly the testi- support friends to damage dealt issue as mony from his mother with — much as wage is the loss as much as the that after his anything plaintiff else. The also testified release, enjoyed family a stable life successful he's employment.

Certainly damages the evidence as to imprecise, is is, likelihood, and an award of million in all higher $2.6 However, than I would have awarded. the plaintiff has by imprisonment. suffered his It was four-and-a-half years, strange sound, may and as it temporary. that's temporarily He was imprisoned. testimony There's no permanency. was, all, this record as to This all in serious deprivation was suffered the plaintiff, obviously and it should compensated, be and that compensation should reflect upon reality of the plaintiffs before, during, life and after incarceration. upset

If I'm to damages, this award of I have to find they're either that so excessive as to they indicate that — resulted from passion, prejudice, or a corruption I — can't do that or I have to jury find that the disre- garded the evidence or the applicable rules of law. I can't jury disregarded find that the any the evidence or applicable rules of I law. can't find that there was given erroneous instructions as to proper the case, measure damages. just This is not the and I have, me, long believe I have dwelt and hard .... 69. We conclude the trial court did not errone- ously exercise its discretion in refusing grant Nun- nery relief from the award. damages While the size of the verdict gives just us pause, as it did the trial court, we, court, like that may not substitute our judgment for that of the jury. We conclude that there is credible evidence to award, support that the trial court's of the analysis record was Koele, See "complete." Wis. 2d at 587. 70. Nunnery's next basis requesting new

trial that, even if there was "credible evidence" to support jury's answer on the causation question, "yes" answer was still to the contrary great weight evidence error involves the same This claim of evidence. point already a different balance reviewed, but have we applies. conclude that nonetheless We for our review finding jury's found not have been that Hicks would failing Nunnery's negligence guilty to obtain absent outweighed by greatly testing evidence to was not DNA contrary. not err in therefore did The trial court the ground. Nunnery denying a new trial on this Nunnery ¶ he claims were Next, cites what 71. require "рrejudicial to the entire case errors" which two admitted the trial court The first is that be retried. postcon- Nunnery's culpa" from Hicks's affidavit "mea proceedings as of counsel assistance viction ineffective Nunnery during malpractice claims trial. the evidence representa- "[t]o promote full because, this was error underlying criminal action client in the tion of the attorney representation, cooperation in that of the the good public policy that § 904.03 dictate and Wis. Stat. attorney's attorney to the admissions an as made malpractice any subsequent from errors be excluded "allowing alleges Nunnery proceeding." the further chilling effect on have admissions would use of such seriously inhibiting vig- the counsel, criminal defense post-trial." representation We clients of their orous disagree. client files a former note that when first 72. We allegedly counsel, assistance a claim of ineffective obligation attorney his or her relieved of is deficient attorney-client confidentiality regarding past communi- reasonably lawyer believes cations, the extent "to concerning allegations respond necessary ... to ... to representation lawyer's client." SCR of the 20:1.6(c)(2) (2002); 2d Flores, 170 Wis. State v. 1992). (Ct. attorneys, App. All 277-78, 488 N.W.2d truthfully testify obligated times, at all moreover, are 20:3.3(a)(1) (2002), including they see SCR when are allegations confronted with of ineffective assistance of question Nunnery's premise counsel. We therefore attorney facing allegations an when a former client's duty ineffective assistance of counsel remains under a "vigorously represent" the former client.16 Rather, attorney's duty testify truthfully regarding is to his representation or her client, former so that the properly criminal court can evaluate the defendant's Sixth Amendment claim. Accordingly, why we see no reason testi-

mony attorney might give during postconviction an proceedings subsequent should be in a inadmissible malpractice attorney trial. discussed, As we have obligated ‍‌​‌​‌‌‌‌​‌‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌​​​​​​‌​​​‌​​​​‍speak proceedings, the truth in both re- gardless testimony may of whether the in the former ultimately against attorney's be interests in the public latter. On balance, we conclude that the better policy attorneys differently is to treat no than other may witnesses whose sworn statements later be intro- against duced as admissions them.17 Nunnery We note that apparently continued to serve as during co-counsel for Hicks postconviction proceedings, not .withstanding the fact that pursuing Hicks was relief on the grounds Nunnery's of ineffective assistance at trial. We believe that representation continued under these circumstances is rare, and in majority the vast of cases where ineffective assis tance of counsel alleged, allegedly attorney deficient no longer represents the defendant. areWe aware of expressed concerns in quarters some

that are the exact opposite of the policy arguments Nunnery According some, advances here. criminal attorneys defense readily will too often admit to deficiencies in their representa tion during postconviction proceedings, perhaps regret out of Nunnery complains of a trial court also 74. introducing ruling prevented him from certain that during by Tracy testimony given the criminal Connor Nunnery proceedings. postconviction claims the testi- hearsay, mony, although was admissible under Wis. 908.03(24), § him that it would have assisted Stat. testimony regarding impeaching Hicks's Hicks's trial in day of offenses. We have on the whereabouts ruling issue, and it on this the trial court's reviewed sought Nunnery appear admission on the does not guarantees "comparable of circumstantial basis of Moreover, we he now cites. trustworthiness," the basis impeach- of the evidence for that the value conclude discrepancy purposes minimal, ment intended to and Hicks had Connor dealt with where previously discrepancy established that was meet, a testimony. through that the court's conclude othеr We any ruling, erroneous, did not affect "substantial if even 901.03(1). § Nunnery's. right" See Wis. Stat. Nunnery Finally, reverse and asks us to justice." grant His in the "interests a new trial simply request support cursory argument of this rejected prior have of error. We claims refers to his try Except for the need one. claims, those save jury's find the innocence, we actual issue of Hicks's record to in the find no basis We verdict sustainable. justice. grant in the interests a new trial continuing a sense of outcome or than desirable over less necessarily not share this We do their former clients. loyalty to concern, only that it exists. but note

CONCLUSION ¶ 76. For the reasons discussed, we reverse the appealed judgment and remand for a trial at which Hicks must establish that he did not commit the by offenses which he was If convicted. finds preponderance of the evidence that Hicks did not judgment offenses, commit the in Hicks's favor shall be reinstated.

By Judgment reversed and cause re- Court.— manded with directions. (dissenting).

¶ 77. DYKMAN, J. It started with Palsgraf Long v. Island Co., Railroad 162 N.E. 99 (1928), by every first-year a case read law student.1 Palsgraf bring one of is those cases that an issue into sharp Everyone Palsgraf, focus. knows of Mrs. who was standing passenger, at a distance from where a assisted employees boarding two of the railroad, was a train. employee accidentally package Id. at 99. The knocked a passenger's package, from the hand. Id. The which turned out to contain fireworks, fell to the tracks below exploded. explosion and Id. The knocked over some injured Palsgraf. scales, which struck and Mrs. Id. writing majority, 78. Justice Cardozo, for the Palsgraf concluded that Mrs. couldn't recover from the company negligent railroad because it was not as to Palsgraf. Mrs. Id. Justice Andrews, in his dissent, 1The crux of this majority dissent is that the has failed to properly apply Wisconsin's long-standing, unique tort method ology considering in public whether policy dictates that Hicks prove actual result, innocence at trial. As a I believe it is necessary to trace the development of that law Wisconsin fully order explain majority where the wrong why went it inappropriate applied follow rule in other states that approach tort ways law in that are alien to Wisconsin. the accident was that the issue was whether concluded by employee. proximately Id. at 102. He the caused permitted was, and would have Mrs. that it concluded Palsgraf railroad. Id. at 105. to recover from the Palsgraf case, because, was a hard while agree liability people should end some- would most stopping place explanation was the for the where, had and Justice Andrews two Justice Cardozo unclear. liability describing place where methods of different stopped. decide how to each have to And state would negligence or an inten- difficult cases where deal with connection between existed, tort but the tional plaintiff tenuous. and the defendant was years picture a few entered 80. Wisconsin Montgomery, 203 Wis. Osborne v. later with (1931). problem recognized the The court N.W dealing "In a consider- area when it said: with this subject easy get in a maze of it is lost ation of this may perhaps metaphysical or it better be distinctions, Id. at 231. The court difficult not to be so lost." said it is liability "Any operates to limit rule which concluded: judicial policy wrongful from act must be derived by any capable formula limits cannot be defined and its application must rest in the but which of automatic of the court." Id. at 237. After some discretion sound backtracking, in v. Stan- this rule was solidified Pfeifer Gateway Theater, Inc., 229, 55 N.W.2d29 262 Wis. dard (1952). holding in its In the court reasserted Pfeifer, noting: Osborne, these hard preferable to be to submit

It would seem determining the issues of jury in far as cases to the so in manner as in the negligence and causation the same there If the determine that was ordinary case. does negligence a substantial and that such negligence, then for the court to injury, it is producing factor decide as a matter of whether or not law considerations public policy require liability. that there be no As out, pointed latter previously this solution is one Montgomery, supra, advanced Osborne v. and we adhere thereto. It also in accord with views expressed Campbell Professor in his article in 1938 Review, 402, Restatement, Wisconsin Law and 2 with (1948 739, 435, 2, e, Supp.), Torts sec. p. comment thereunder. 262 Wis. at 240.

Pfeifer, 81. Professor Richard had a Campbell has pro found influence on the way Wisconsin Supreme torts, Court has viewed and in particular, the proper method causation, of issues of analyzing duty, damages and of factors policy preclude which His vari liability. ous articles in the Wisconsin Law Review and elsewhere have been cited favorably by court on twenty-one 1938, occasions. In Professor examined the Campbell cause," use of the term "proximate and the problems inherent the use of that term. Richard V. Campbell, Cause, Fault and Duty, Legal 1938 Wis. L. Rev. 402 (1938). He observed that the use of that term has been it confusing, because described two different very con cepts: "proximate

The term cause" commonly has been used to liability describe limitations on and on the (1) liability extent of based on lack of causal connection (2) fact, policy making and factors it unfair to hold party. Experience has demonstrated that the name was an unfortunate selection. Its use has tended to way confuse issues in much the same phrase ipsa loquitur" "res has hampered the normal use presumptions of and circumstantial evidence in the proof negligence. unduly "proximate" word has emphasized variety one out of a Associating factors. it with word "cause" has tended to confuse two 1912, distinct issues. In an article in Jer- Professor suggested emiah Smith the use of the term "substantial This "proximate factor".... dissatisfaction with cause" may expressive terminology a more produce possi- bly logical procedure. a more But it must be remem- questions usually bered fundamental are not Any solved words. word or set of words will work if meaning knowledge. their a matter of common Id. at 403. 1941, In Professor noted that Wis- Campbell

consin had two lines of that were developed authority administration inconsistent in their fundamentally Campbell, Torts, rules of cause. See Richard proximate V (1941). L. Rev. By 1962, Wis. Professor had Campbell concluded that: administering It is now clear that we are two distinct under "proximate issues the label cause.".One is jury, the issue of cause in fact. for the This issue is subject by judge passing to the usual controls the in on sufficiency the purely evidence. The other issue is policy exclusively one of the of the law. It is for the judge. It is not clear completely how to describe these separate single the of The issues use this term. matter complicated by past is further associations which surround it. Law Governing V Wisconsin Automo Campbell,

Richard I, bile 240, Accidents —Part 1962 Wis. L. Rev. 266-67 (1962). sum, 83. In Campbell Professor believed term

"[t]he cause' has outlived its useful- 'proximate ness" and recommended an of ac- course appropriate tion: "Various terms have been selected for the legal I firing nominate cause.'" Id. squad. 'proximate 1969, In a Campbell Professor presented series of four lectures on tort in law Wisconsin.

773 in lectures Richard V compiled were Campbell, Recent (1969). Developments this By of Tort Law in Wisconsin time, Professor had concluded that Campbell fact, term for cause in as used in the proper popular sense, was factor." It was therefore imma "substantial unnatural if, fact, terial in the negli how result in gence causing injury. substantial factor In factors, or "X" Professor discussing policy Campbell wrote:

Delimiting factor have been policy principles in source of considerable confusion tort law. Much of years this in has been corrected recent since we have sharply distinguished in fact and delim issues cause iting policy factors. The case set the standard for Pfeifer exclusively Wisconsin. This issue is for the court and it will shock the conscience test is whether society explaining to hold the defendant. In the Pfeifer 1962, Co., approach, in in H. L. Longberg v. Green 129, 114 N.W.2d (1962), Wis.2d our N.W.2d court "The public-policy Pfeifer, said determination of Klassa, and Colla seems to us a more realistic descrip impose tion what court does when it declines to liability no-duty than the these situations formula of Palsgraf and Waube." approach

We have settled our to the Of issue. course, automatically this does not solve all of the cases. does, nevertheless, prevent making It fromus mistakes question. cases which are mine-run on this This negligence means or more of our total litiga- 99% tion .... the hard

This still leaves cases. We should not disregard simply they earlier authorities because were 1952, decided before the date of the decision. Pfeifer Although analysis the Restatement Torts of this subject substantially Wisconsin, differs from that in it disregard does not mean we should the Restatement in answering The value of material in individual cases. Restatement Torts is illustrated decisions Co., Heritage Diener v. Mutual Insurance 37 Wis.2d (1967) 411, and Johnson v. Chemical 155 N.W.2d 37 (1968). Co., 194, Supply 38 Wis.2d 156 N.W.2d455 In analysis recovery by in each instance the resulted plaintiff. added).

Id. at 54-55 (emphasis In conclusion, Professor noted: Campbell ¶ my today in opinion It is that tort law Wisconsin is on any a more basis than tort law in other state in sound decisions, study the United States .... s I tort I am [A] constantly I appalled amazed and at what find around country. easy why It some people is understand parts any change in of the United feel that some States bound to an improvement. is be [B]y large, and I am that our

. .. convinced su- preme job molding court has done an excellent common law torts this state.

Id. at 121-22. 86. The of Professor view of genius Campbell's easy

torts is its This view makes tort law as simplicity. A, B, breach, D X. A B C is cause in C, duty, as is is Wisconsin, In fact, D is and X is factors. damages policy any owes a to all others to refrain from everyone duty Dixson harm to others. act which will cause foreseeable Health Org. Corp., v. Wisconsin Ins. 95, 22, 2000 WI (2000). The breach of 237 Wis. 2d 612 N.W.2.d 721 Ramsden v. Farm Credit negligence. constitutes duty Wis., Serv. Cent. 704, 714, 223 Wis. 2d 590 N.W.2d of N. 1998). (Ct. A "substantial factor" any cause App. injury. Pfeifer, 262 Wis. at 273. that produces injury. for loss or pecuniary are Damages compensation Co., v. Mut. Ins. Heritage Wisconsin Pub. Serv. Corp. (Ct. 1996). App. 821, 831, 200 2d 548 If Wis. N.W.2d544 plaintiff, these factors are determined in favor of a most judgment plaintiff. here, cases end with a for the In the judges policy cases, hard determine whether factors will prevent liability notwithstanding plaintiffs success negligence, proving damages. causation and What analysis easy judges makes this and workable is that analyzing policy case-by-case factors do so on a basis. There is no "one size fits all" rule which would lead to exceptions upon exceptions unfortunate results and "case-by-case" universally individual cases. This rule is firmly used, and is entrenched in Wisconsin case law. See Bowen v. Co., Lumbermens Mut. Cas. 183 Wis. 2d (1994); City 627, 650-51, 517 N.W.2d432 v. Garrett of Berlin, 223, 242, New 122 2dWis. 362 N.W.2d 137 (1985); Alwin v. State Farm Fire & Cas. Co., 2000 WI App ¶92, 12, 441, 234 Wis. 2d 610 218; N.W.2d Sussex Supply Water, Tool & v. Inc., Mainline Sewer & 231 Wis. (Ct. 1999). App. 404, 418, 2d 605 N.W.2d620 clearly ¶ 87. This view differentiates between the by jury policy factual issues to be determined and the by judges. particularly states, issues be decided Other struggle "proximate those which continue to with multiple meanings, lucky. cause" and its are not so appellate While we see discussions in other states' opinions policy operate which issues to delimit recov- ery, "proximate place policy use of the term cause" can jury. Campbell's decisions in the of a hands In Professor way view, mine, and in an unfortunate determining public any policy state. Campbell

¶ 88. How would Professor view analysis Wisconsin's tort law were he here to examine it today? Probably optimistically not as as he did in though analy- time, most of the Wisconsin courts follow teachings. that do not ses clash with his core While "proximate put firing term cause" has not been to the squad, those unfortunate words have been described as "abandoned." The court did so in Blashaski v. Classified Corp., 169, 174-75, Risk 2d Insurance Wis. (1970): N.W.2d924 proximate

The doctrine of cause in the strict sense of term has been abandoned for the substantial- concept express "legal factor of causation to properly (1931), Montgomery cause" or "cause." Osborne v. 203 223, 236, 372; Wis. 234 N. W. v. Standard Pfeifer Theater, Gateway (1952), 229, 262 55 2d Inc. Wis. N. W 29. repeated Sampson

¶ comment 89. This v. (1975); Laskin, 318, 325, 66 Wis. 2d 224 N.W.2d 594 Movers, Inc., 538, Miles v. Ace Lines & 2d Van 72 Wis. (1976); 542, 241 186 and Rixmann v. Somerset N.W.2d Schools, 571, 585, Public 83 2d 266 326 Wis. N.W.2d (1978). Jarvis, 627, 641, And in v. 119 2d Sorensen Wis. (1984), 350 N.W.2d 108 the court referred to "the concept proximate recently, outmoded of cause." More appeals "proximate had the court of noted that cause" Keith, been abandoned in See Eckes v. 143 Wis. Pfeifer. (Ct. 1988); App. 209, 211, 2d 420 417 see also N.W.2d Young Co., 742, 749, v. Ins. 154 2dWis. Professionals (Ct. 1990). App. 24. 454 N.W.2d rejec- notwithstanding However, the court's 90. phrase "proximate Wisconsin, tion of cause" in has Campbell's a life of had considerable its own. Professor two distinct observation that those words describe meaning resulting in is issues, confusion as to which dramatically meant, in the cases that use this is shown published term. A of half of the 344 cases search about phrase "proximate which use the cause" reveals that benign "proximate courts are cause," the most using use of synonym policy phrase "X" a for the or as

777 may liability negate factors that courts use to after a duty, concludes that ‍‌​‌​‌‌‌‌​‌‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌​​​​​​‌​​​‌​​​​‍a defendant caus breached ing damages plaintiff.2 Brockmeyer to a See v. Dun & (1985) 561, 575, 2d Bradstreet, 113 Wis. 335 N.W.2d834 (only liability "proximate limitations on are those of considerations); public policy or v. cause" Sanem Home (1984) Co., 530, 538, Ins. 2d 89 Wis. N.W.2d ("proximate public policy cause" involves considerations law); question of Tollefson, and is Widell v. 158 Wis. (Ct. 1990) (determi App. 674, 682, 2d 462 N.W.2d910 "proximate through pub nation of cause" evaluation of law); policy question lic considerations is a Reiman Advertising, Associates, Inc., Inc. v. 102 Wis. 2d R/A (Ct. 1981) App. ("proxi n.11, 306 N.W.2d292 considerations). equivalent policy mate cause" relatively benign However, even a use of "proximate synonym policy cause" as a for "X"or factors confusing. examples policy Several six relationship factors has Wisconsin identified have no proximateness. Stores, "cause" or In Miller v. Wal-Mart (1998), Inc., 250, 264-65, 219 Wis. 2d 580 N.W.2d233 the court examined these factors:

(1) (2) injury negligence; is too remote from the or injury wholly the is out proportion culpa- toо to the (3) bility tort-feasor; negligent or in it retrospect highly extraordinary appears negligence too that the (4) harm; brought should have about the or because recovery place allowance of would too unreasonable a (5) tort-feasor; negligent burden on the or because recovery likely open allowance of would be too the using There are more than 344 phrase "proxi cases the only mate cause." the But search data included cases decided from 1939 to date. (6) claims;

way recovery fraudulent for or allowance of a just stopping would enter field that has no sensible or point. injury The first factor, an that too remote is negligence,

from the is the factor Justice Andrews used Palsgraf recovery, though in his dissent to limit he apply concluded that it did not that case. But it is explain phrase why "proximate difficult to the cause" identify concept being recovery likely would the aof too open way for fraudulent claims or that allowance recovery enter a that would field has no sensible or just stopping point. "proximate reasonably While cause" negligence, only describes remoteness from ing it confus- is using when it to some of the describe other factors liability. Wisconsin uses to limit why concept policy ¶ 93. There is no reason liability negating a reasons as matter of law cannot be any phrase. described almost or But it is word phrase unfortunate that we at times have used "proximate concept cause" to describe this because the word "cause" is the same used earlier in our word torts analysis. "Proximate cause" can be and confused with or in fact," words "cause" "cause words used to relationship describe a that is directed to con- determining negligent. sider when an whether actor is Campbell suggested This is the reason Professor "proximate cause" was a term has "outlived its firing squad. usefulness" and should be selected agree. I far 94. But the situation is worse than the use of concept. significant

an term to A unfortunate describe using phrase "proximate cause" number of cases use concept policy it not negate liability, of to describe the factors which incorrectly proximate equate but to concepts. instance, cause a number of For in with other 779 Smelting Corp., City 117 2d Wis. Milwaukee v.Allied (Ct. 1983), App. we 377, 387, N.W.2d 523 344 "[W]e correct in the trial court was hold that wrote: proximate attributing negligence cause to Allied." and City apparent Milwaukee, we confused that in It is "proximate in A court does not cause fact. cause" with litigant. proximate a Instead, a cause to "attribute" policy plaintiff reasons, a concludes that court County, prevail. Dane 195 Wis. And in Jones v. cannot (Ct. 1995), App. the dissent 74 892, 2d 537 N.W.2d prescribed an on "That court instruction concluded: rejected legal proximate the use of the cause which or 'proximate factor.'" in favor of 'substantial term cause' contrary (Sundby, dissenting). J., This is Id. at 966 supreme had done Osborne court what explain, these two I have cited As cases Pfeifer. synonymous, different not but describe two terms are by judges, concepts, and the one of which is decided juries. other Casualty Co., & In v. State Farm Fire Smith (Ct. 1995), App. 322, 333, N.W.2d376

192 Wis. 2d type a connection was not we said that causal ordinarily necessary to warrant "which would be finding 'proximate factor' as cause' or 'substantial liability." "proxi- imposing But those terms are used policy factors, "X" or cause," mate if used to describe liability, prevents liability. impose it We con- does not "proximate in fact" in cause" with "cause"or "cause fused Casualty 2d Co., In 180 Wis. Smith. Cookv. Continental (Ct. 1993), App. we 249, 509 N.W.2d only prove "Upon remand, Cook must not said: negligence Hupy negligent, that the was the but injury. Assuming proximate . .." that we cause of the policy "proximate factors, mean or "X" cause" to used something plaintiff "proximate must not cause" is prove, limiting plaintiffs recovery. but a factor on a Again, "proximate we confused cause" with "cause." problem brought 96. The is sometimes about example when the context of the case is unusual. An this is State v. Asfoor, 411, 75 Wis. 2d 249 N.W.2d529 (1977), a criminal case which nonetheless dealt with negligence. question The court concluded: "The proximate whether the defendant's acts were a cause of injuries. question jury." the victim's That is a for the Id. "proximate at 434. But cause," even if in used its most benign synonym policy form aas for or "X"factors, is a jury matter for a court to decide. We do not alet decide policy problem factors. This has occurred in a case, civil Heintz, Johnson v. 286, 303, 73 Wis. 2d 243 N.W.2d815 (1976): negligence "Such could also have been found by proximate to thus be a cause of the second impact of the Heintz vehicle . . . ." "legal 97. To further, confuse the matter cause" "proximate is sometimes substituted for Bowen, cause." "legal 183 Wis. 2d at 654. And cause" is sometimes used to describe a factors, combination of one of which is a jury question and the other a matter for the "In court. negligence legal cases, cause consists of two parts: "proximate cause-in-fact and cause." McMahon v. St. Croix Falls Dist., Sch. 228 215, 223, Wis. 2d (Ct. 1999). App. despite "legal N.W.2d875 This is cause" being synonym "proximate used as a cause." Weused "legal cause" to mean "cause fact" in Benzel, State v. (Ct. App. 220 Wis. 2d 592, 583 N.W.2d 434 1998): "It follows that an offense created an uncon longer stitutional statute nois a crime and a conviction legal under such a statute cannot be a cause for imprisonment." Vehicles, See also Clark Inc., v. Leisure (1980) ("If 607, 619, 96 Wis. 2d 292 N.W.2d 630 negligent actor's conduct is a substantial factor in legal of that bringing cause harm it is about the (internal omitted); harm.") quotations Barrons v. J.H. 444, 459, 2d 278 N.W.2d Sons, Inc., 89 Wis. & Findorff ("This (1979) reaffirming the substantial- court, in (internal cause,....") determining legal factor test Comty. omitted); quotations Misericordia Johnson v. (Ct. App. Hosp., 501 521, 560, 294 N.W.2d 2d 97 Wis. 1980). only by cases no means the

¶ cases are These 98. "legal "proximate and cause" cause" in which the term some- are to describe confusion, or used caused have thing liability. policy delimit factors which than other iceberg. they tip In the time are the Indeed, only able to consider dissent, I have been to a allocated electronically by cases found half of the 344 about searching "proximate of the 110 cause," and half for searching "legal electronically by for cases found phrase Many the unfortunate of these cases use cause."3 way. ambiguous incorrectly "proximate in an or cause" negative supreme Despite comments about court's the sign phrase "proximate cause," it no shows the legal disappearing our lexicon. from things. problem to several this I attribute ring "proximate phrase, it, a nice to cause" has First, lawyerly. enjoy using lawyers The it. It sounds and we legislature. by phrase See, for has also been used (1999-2000) (exception § to 895.44 instance, Wis. Stat. immunity negligence statutory if of state officer death). Finally, injury "proximate we have or cause" of legislature to used "legal cause" is also The term "X"factors. See Wis. policy than or something other mean Stat. (1999-2000). 118.16(l)(c) 973.15(8)(a)l The Restate and §§ (1977) "legal cause" to de § uses (Second) of Torts ment This adds confusion in nuisance cases. in fact scribe cause law. Wisconsin tort Palsgraf, using

all "proximate studied and the term many concept cause" still connotes to of us the enough liability "cause" or "cause in fact" is not benign exist. And while that true, at least use "proximate term, the use of the term cause" needlessly Campbell's adds confusion to Professor amazingly simple analyzing and accurate method of torts in Wisconsin. my 100. And how does this affect view of the

majority's opinion? Using Campbell's analy- Professor agree majority I Attorney Nunnery sis, with the duty represent competently. had a agree Hicks And I jury duty. that the could find that he breached that Both majority agree I and that the could find that duty significant this damages. breach of caused Hicks majority part company. majority, But then the I analyzing policy instead of or "X" factors, examines from cases Massachusetts, California and New York plaintiff which malprac- concludе that a in a "criminal every prove tice" must, case in instance, his actual Majority innocence ¶¶ of the crime. at 38-43. To its majority phrase "proximate credit, the has excised the analysis global, cause" from its decision. But its is ignoring the rule set out in Alwin, Tool, Sussex Bowen way and majority Thus, Garrett. the first in which the way analyzes deviates from the that Wisconsin tort analyze cases is its failure to Hicks's case on its or facts, require, "case-by-case" as Wisconsin cases on a basis. way majority ¶ 101. The second deviates from analysis by adopting reasoning Wisconsin tort is from considering other states without how these states con struct their analyses law, tort and how consistent those states' unique methodology.

are with Wisconsin's only Wiley County Thus, we need to examine not v. of (Cal. Diego, 1998), why San 966 P.2d 983 but 783 analyzed Wiley Supreme did, as it California Court do so, its tort we under California's view of law. When although appellate California courts we discover that they adopted major- totally consistent, have are not injured duty Palsgraf, ity approach in and use to liability plaintiff limiting of foreseen as method Rptr. Unjian, consequences. Hegyes 85, See v. 286 Cal. 1992). (Cal. long analysis ago App. This Ct. 101-02 rejected explicitly in does use Wisconsin. California recoveiy. public policy primary factor to limit foreseeability, certainty of harm, but of closeness con- negligence harm, blame, moral nection between prevention harm, of burden on defendant and future community City consequences v. are also used. Ma & Rptr. County 544, Francisco, 115 Cal. 2d San of (2002). foreseeability policy Wisconsin, In is not a duty. part

factor, but a of our broad definition of Olson (Ct. App. 251, Ratzel, 227, v. 89 Wis. 2d N.W.2d 1979). Duty obligation any person is the to refrain any harm to act that will cause foreseeable others from though identity the nature of that harm and the even person harmed or harmed interest are unknown at Senecal, v. 197 Wis. 2d the time act. Rockweit (1995). respect, In 419-20, 541 N.W.2d742 this Wiscon- minority Palsgraf. represents viewpoint in sin surprising, Rockweit, 197 Wis. 2d at 420. It is not majority therefore, California, which follows the Palsgraf, viewpoint cases, all would conclude plaintiffs malprac- law, a matter of in "criminal and as prove tice" cases would need actual innocence. concept duty, does broad which not Wisconsin's policy considerations, leads to a different result: include Nunnery clearly only question

was liable to Hicks. The

784 policy in be considerations, Wisconsin should whether applied case-by-case Nunnery basis, aon should relieve liability. majority explains

¶ 103. The it that is also influ- (Mass. 1991). Aiken, enced Glenn v. 569 N.E.2d 783 Majority though ¶at But Massachusetts, tort its methodology fragmented, certainly does not follow like Massachusetts, California, Wisconsin rule. mostly majority analysis Palsgraf, always follows the in Nycal citing favorably. e.g., Corp. See, it v. KPMG Peat (Mass. 1989). Marwick, LLP, 1368, 688 N.E.2d 1370 In deciding duty exists, whether a Massachusetts courts "existing look appropriate customs, social and values as well as to policy." Group,

social v. Davis Westwood 652 (Mass. 1995). 567, Or, N.E.2d 569 inas Yakubowiczv. (Mass. Corp., Paramount Pictures 536 1067 N.E.2d 1989), the court concluded that the defendant owed plaintiff duty, public policy from but barred court concluding duty that was breached. And Poskus (Mass. Randolph, Inc., v. Lombardo's 670 N.E.2d 383 1996), duty concluding cause, the court intertwined injury that a an defendant did not cause as a matter of injury reasonably law because the not foreseeable. "proximate though cause," This is sometimes called not consistently. v. F. Co., See Westerback Harold LeClair (Mass. 2000). App. So, N.E.2d Ct. public puts policy whether Massachusetts consider- duty certainly cause, both, ations into or into or it does duty governs not use the broad definition surprised, I therefore, Wisconsin cases. am not applicable Massachusetts, rule mal- to all "criminal practice" cases is used. majority

¶ 104. The also considers Carmel v. Lun (N.Y. ney, 1987), persuasive. be 511 N.E.2d 1126 Majority seen, at we York But, 43 n.10. as have New birthplace Palsgraf, and Justice Cardozo's

is the of majority opinion a in which he concluded that tortfea- duty plaintiff the not owe a to the because sor did plaintiff is the the zone of risk. This still was outside City York, v. New 733 rule in New York. See Lauer of (N.Y.2000). specifically has 184, Wisconsin N.E.2d rejected methodology. New York's tort law cases, In the were con- all these courts guilty persons might be able recover cerned that attorneys negligent requiring if a broad rule from major- adopted. Though the innocence were not actual ity reasoning sub-reasons, this into five here subdivides majority totally upon almost relies are cases person might guilty a that a be able to based on concern damages. support If there recover that's all majority's persons impris- are conclusion that all who attorneys' negligence show oned because their must examining tort innocence, actual Wisconsin's method case-by-case on an individual or basis solves that cases easily. problem adopt a There is no reason to one-size- simple sophisticated rule, fits-all when Wisconsin's but analysis appropriate lets courts tailor the result to the facts of the case. methodology apply does 106. How Wisconsin's majority I I both

to Hicks's case? believe that agree reasonably could have found that that Nunnery's damages. negligence How caused Hicks's ever, I "X" view case would consider factors and Hicks's Feleipe as one somewhere between two other cases— case, Bowe, v. 2d Harris's Harris 178 Wis. (Ct. 1993), App. Christopher N.W.2d159 and the case of significantly reported Ochoa, a case local media. police Feleipe Harris he kicked told Milwaukee had person butt, "in his and in Id. at his back his chest." stomped person's 864. He then confessed that he on hip leg, and collarbone areas. Id. He described the just lying eyes open person as with there his didn't —"he good." being first-degree look Id. After convicted guilty plea, appealed. reckless homicide on his Harris appellate attorney at Id. 866. His filed no merit any report, concluding affirmed, and we further appellate proceedings would be frivolous. Id. Harris attorney malpractice. then sued his for Id. Though might

¶ 107. Harris have been able to attorney negligent causally show that his and that damaged him, this I would that he conclude was not recovery to entitled recover because allowance under likely open way these facts would too be to fraudulent This is the six claims. fifth of non-exclusive public-policy preclude Wisconsin reasons uses to liabil- ity in Miller, individual cases. See 219 Wis. 2d at might Or, case, I 264-65. danger conclude that in this guilty person recovering damages of a was too great, public policy, and that as a matter of Harris could not recover. spectrum

¶ 108. On the other end of the is Chris topher Ochoa Ochoa's case. was convicted of murder rape arising single and of a Tom Kertscher, out incident. Liberty Last, 17, 2001, Justice Milw. J. Jan. at Sent., significant spending prison, 1A. at After time in learned that else Ochoa accident someone had con rape. Group Clark, to the murder and Anita fessed Rescue, ‍‌​‌​‌‌‌‌​‌‌‌​‌​​​‌‌​​‌​‌‌‌​‌‌​‌​‌​​​​​​‌​​​‌​​​​‍14, 2001, to the Wis. St. J., Rides Jan. at A1. DNA tests showed that Ochoa could not have commit rape. granted trial ted Id. The court Ochoa's motion supra, prison. Kertscher, be released from at 1A. In to subsequent in a case, I conclude that Ochoa's would malpractice" case, if a "criminal found Ochoa's attorney's negligence convicted, caused Ochoa be prevent

public policy him from not reasons would recovering attorney. from his neither nor case would In Harris's Ochoa's required prove I the criminal defendant actual have Doing he could recover. so would innocence before certainly prevent recovering, Harris would be from but might prevent an added and unneeded obstacle recovery. using policy me, Ochoa's To considerations individually, analy- proper each case Wisconsin tort appropriate in both Harris's and sis, ensures the result Ochoa's cases. majority

¶ 110. The uncomfortable with this analysis, preferring plaintiffs to force all in criminal malpractice prove The result cases actual innocence. approach plaintiffs of this will weed out frivolous cases weeding at Harris's, such as but the cost of sometimes deserving plaintiffs their out negligent attorneys. who should recover from majority's discomfort with judges deciding policy issues should have been settled long ago. denying Judges permitting have been or recovery policy reasons in Actual Pfeifer, since innocence is as much fact as the distance between Palsgraf exploding is Mrs. and the fireworks. Yet there question analyze her Wisconsin, no we would that using policy suggested by case first Professor factors might Campbell. poten- that cause discomfort to While majority, plaintiffs tial as well as to the that is successfully years. methodology fifty we have used for ¶ 111. does Hicks's case fit between Where strong Harris's Ochoa's It not as case and case? as stronger Ochoa's but much than Harris's. DNA evi- suggests strongly perpe- dence that Hicks was not the trator of which he the sexual assault for was convicted. good perfect. I but evidence is not conclude unlikely guilty person attempting Hicks is to be a judgment against attorney. recover a his majority suggests ¶ 112. The also that a criminal ought may defendant to be satisfied because he or she prevail be able to in criminal court because his or her counsel I was ineffective. view this as little better than

nothing. Telling happy Hicks that he should be with his only spent years prison release because he four justice rather than nineteen does not sound like to me. writing majority opinion, 113. Were I I would methodology Campbell follow the that Professor initi- adopted. ated and Wisconsin has I would conclude that Nunnery duty represent competently. had a Hicks I would conclude that the was entitled to find that Nunnery duty, breached that and that the breach damages caused to Hicks. IAnd would conclude that policy none of the factors in Miller, found 219 Wis. 2d at public policy required 264-65, and no other reason complaint against Nunnery Hicks's should be dis- majority, Thus, missed. unlike the I would affirm judgment against Nunnery. why Hicks's That is I re- spectfully dissent.

Case Details

Case Name: Hicks v. Nunnery

Court Name: Court of Appeals of Wisconsin

Date Published: Mar 28, 2002

Citation: 643 N.W.2d 809

Docket Number: 01-0751

Court Abbreviation: Wis. Ct. App.