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WI: Appeal of Frivolous Malpractice Suit is not Necessarily Frivolous

Morters v. Aiken & Scoptur, S.C., 712 N.W.2d 71 (Wis. App. 2006)

WI: Underlying personal injury suit

Student Contributor: Jeffrey Cain

Facts: Morters retained Aiken & Scoptur to represent him in an personal injury case stemming from a car accident. Unsatisfied with their work, Mortens sued the firm for legal malpractice. The trial court dismissed the case, since the former client could not prove all of the elements of malpractice. The lawyers sought attorney’s fees based on a state frivolous claim law. The trial court ruled that the suit was not frivolous, and the lawyers appealed. The court of appeals ruled that the suit was frivolous, and remanded the trial court to determine reasonable fees. The court ordered the client to pay $10,123.09 in trial court fees and $17,820.02 in appeals court fees. Mortens appealed the trial court’s determination that the appeal was frivolous.

Issue: Does a trial court have the authority to make a finding that an appeal of a frivolous legal malpractice suit is frivolous?

Ruling: No. The authority to make a finding that an appeal is frivolous in Wisconsin lies in either the court of appeals or the supreme court.

Lesson: Lawyers have no duty to mitigate damages by alleging frivolity at the first hint of frivolousness. They may wait until after the discovery process has begun to allege frivolity, after they obtained objective evidence to prove frivolity.  

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Posted in: Torts/Personal Injury, Wisconsin