WI: Underlying criminal matter
Facts: Client was charged with ten counts of sexual assault. He was represented by another lawyer during the arraignment and the jury trial, which found him guilty. Lawyer Colwell represented him during the sentencing, in which he was sentenced to 20 years in prison. The client unsuccessfully appealed his conviction, arguing among other things, that his due process rights were violated because the criminal court did not personally read the information to him at the arraignment. The client then sued the lawyer for not raising this fact at the sentencing.
Issue: How can a client prove that his former lawyer committed malpractice?
Ruling: To show lawyer malpractice in a criminal action, you must show that you would have succeeded in court if it were not for the lawyer’s failure to exercise reasonable care. In this case, the client had to show that he would have won if the lawyer argued that the client was prejudiced by the failure of the court to personally read the information to the client. To show this, the client would have to provide expert testimony to prove this. Since the client did not name an expert within the time limits, the court dismissed his claim.
Lesson: In Wisconsin, to prove a breach of a duty of care, expert testimony is generally required, since duty of care is outside of the area of common knowledge.