Every first-year law student’s toolbox contains an introductory torts outline with the four general elements of negligence: duty, breach, causation, and damages. These fundamental concepts of negligence are the foundation of legal malpractice,¹ which is most often treated as a tort, although Wisconsin and many other states recognize malpractice claims for breach of contract.² It is a lawyer’s duty, in rendering professional services to a client, to exercise the degree of care, skill, and judgment that reasonably prudent lawyers practicing in Wisconsin would exercise under like or similar circumstances.³

These principles of negligence are no different for lawyers who bring cases in appellate courts. When a lawyer fails to exercise the degree of care, skill, and judgment that reasonably prudent appellate lawyers practicing in Wisconsin would exercise in the appeal of a client’s case and the failure causes harm to the client, legal malpractice has occurred. This article explores the elements of a legal malpractice action and identifies a few common mistakes that may be avoided through best practices.

The Element of Duty

To establish a duty owed by an attorney to a client in a legal malpractice action, an attorney-client relationship must exist. The plaintiff has the initial burden of proving the existence of the attorney-client relationship.⁴ Often, this is the easiest element to establish in a legal malpractice case. The attorney-client relationship is generally one of agency, and the rules of contract formation determine whether such a relationship has been created. Thus, the contract depends on the intent of the parties and may be express or implied.⁵ This seems simple enough, but consider Comment [4] to Wisconsin Supreme Court Rule 20:1.3 – Diligence:

“Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client.”

It is the lawyer’s responsibility to clarify any confusion about whether an attorney-client relationship exists. The situation described above can be resolved using effective non-engagement, engagement, and disengagement letters. With respect to non-engagement, one court found an attorney-client relationship in a case in which a potential client consulted a lawyer on one occasion, was told she did not have a viable case, and did not seek other legal advice until the statute of limitation on the case had expired. The initial attorney did not discuss a fee agreement to undertake the representation or charge for the consultation.⁶ A simple “I am not your lawyer…” letter could have resolved the claim in that case from the beginning.

Similarly, a letter of retainer or retainer agreement that clearly defines when the attorney-client relationship begins and ends fits into the “ounce of prevention, pound of cure” category. Finally, a disengagement letter at the conclusion of the representation can remove all doubt about any future representation, including any appeals.

Breach of the Standard of Care

Once an attorney-client relationship has been formed, the lawyer has a duty to exercise the degree of care, skill, and judgment that reasonably prudent lawyers practicing in Wisconsin would exercise under like or similar circumstances. Lawyers who hold themselves out to the public and the profession as specializing in an area of law have a slightly different duty: They must exercise the skill, prudence, and diligence exercised by other reasonably prudent specialists in the same field.⁷ In other words, attorneys who holds themselves out to the public as appellate practice experts will be held to the same standards as other appellate experts, which is, perhaps, a slightly higher standard than that for lawyers generally.

The plaintiff must prove negligence using expert testimony.⁸ There are a few exceptions to this rule, including the following: the duty breached is other than a legal duty (for example, failure to follow client’s instructions), the breach of duty is obvious to a jury (for example, failure to file appeal within the requisite time period), or the defendant lawyer admits negligence.⁹

The requirement of expert testimony is apparent when a malpractice claim involves the lawyer’s strategic decisions in pursuing an appeal. In one case in which a claimant brought an action against a lawyer for failing to raise requested arguments on appeal, the lawyer’s expert testified that the issues the defendant lawyer raised and argued on appeal had a much better chance of success than those the claimant requested. The claimant offered no expert opinion in that regard, and the court granted summary judgment to the defendant lawyer.¹⁰

Cause and Proximate Cause

Often, to establish causation in a legal malpractice action, the plaintiff must prove the equivalent of two cases in a single proceeding or what has been referred to as a “suit within a suit.” This entails establishing that “but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action.”¹¹

The loss of the ability to litigate is not worth anything.¹² In other words, the claimant is not more likely to prevail merely because the lawyer missed the filing deadline or failed to timely provide the court with a trial transcript. The claimant must prove that the appeal would have been successful.

Proof of Damages

The last element of the tort of legal malpractice requires that a person suing an attorney for malpractice prove the claim was valid and would have resulted in a judgment in the person’s favor and the “amount of damages recoverable and collectible if the suit had been properly prosecuted.”¹³ The appropriate measure of damages is the amount that will put the plaintiff into the position the plaintiff would have been in if the attorney had not been negligent.¹⁴

Common Mistakes When Representing a Client on an Appeal

What follows is not a comprehensive list of all the things that could possibly go wrong when representing a client on an appeal. Rather, these are a few issues that Wisconsin Lawyers Mutual Insurance Co. (WILMIC) has more frequently encountered from its policyholders.

Calendaring. The American Bar Association reports that nearly 25% of legal malpractice claims are based on lawyers failing to file documents, failing to note things on their calendars, procrastinating, or failing to meet deadlines. Perhaps one of the most obvious mistakes that leads to a claim is failing to timely bring an appeal or missing a court-ordered deadline. To avoid such a claim, it is imperative to maintain a good calendaring system.

A good calendaring system is transparent and centralized and incorporates redundancy. In other words, everyone in the firm should be able to see the deadlines that lawyers are trying to meet. This reduces the likelihood that deadlines will be missed. There are more options than ever to use practice management software to create computerized and centralized calendars. Nonetheless, redundancy is a good thing. Lawyers who habitually maintain one or more written calendars should continue to do that, too.

Equally important as a good system are good habits. Lawyers should calculate deadlines and enter them into the calendaring system as soon as the underlying information is available. Have another person verify that the deadline calculations are accurate, and include reminders to allow sufficient time for the work to be completed.

Failure to Raise an Issue on Appeal. The nature of the error of failing to raise an issue on appeal often stems from attorney-client communication. A recurring issue in this regard is a client who thinks they have the perfect argument to win on appeal and insists that the lawyer make that argument. However, a lawyer is expected to use professional judgment when deciding which issues to appeal, and the lawyer should be selective and not appeal every conceivable issue.¹⁵ Moreover, attorneys will not be held responsible if their decisions are ones that a reasonably prudent attorney might make even if a court later determines that the decisions were erroneous.16 Lawyers sometimes conclude that the client’s argument is nonsense and there are better issues to raise on appeal.

Balancing professional judgment with the obligation to communicate with clients pursuant to Wisconsin Supreme Court Rule 20:1.4 can be difficult. The lawyer is required, among other things, to “… reasonably consult with the client about the means by which the client’s objectives are to be accomplished.” Reaching out proactively to explain strategy decisions and to avoid leaving a client guessing about actions can go a long way toward preventing a client from becoming dissatisfied and a possible claim. A lawyer should communicate with clients at the specific client’s level of understanding and acknowledge that the lawyer, in turn, understands what the client is communicating. Finally, it is always advisable to follow up with “IAY” – “I Advised You…” – letters, which identify the issues discussed and the advice the lawyer ultimately gave.

Failing to Follow Proper Procedure. Many errors reported to WILMIC that lead to appellate malpractice claims arise when lawyers are unfamiliar with or ignore strict rules of appellate procedure. Such errors include the failure to file trial court records, briefs, or other documents. As noted above, an appellate malpractice claim can be difficult for a plaintiff to win because of the difficulty of meeting the burden of establishing success on appeal but for the lawyer’s error. However, the time, cost, and inconvenience of defending a claim can be significant regardless of whether the plaintiff wins.

In addition to the standard of care required of all lawyers and the duty owed to the client, Wisconsin Supreme Court Rule 20:1.1 requires lawyers to provide competent representation to a client. After all, clients hire lawyers to do something they do not have the knowledge or training to accomplish themselves. Comment [2] to 20:1.1 provides useful guidance to those unfamiliar with appellate practice:

“A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”

Lawyers should try to recognize what they don’t know about appeals and educate themselves by studying or asking someone who does know. It is invaluable for lawyers to make use of strong networks of colleagues and resources so as to deliver legal services and to identify avoidable blunders that could lead to unhappy clients or claims of legal malpractice.

Conclusion

Although the elements of legal malpractice are the same in trial practice and appellate practice, the appellate system has its own set of rules and procedures. Arguments advanced in appellate proceedings may be different than those used at trial. Nonetheless, many types of errors are common to both, and guidance for avoiding the risk of error applies to both types of practice. Implementing some basic office procedures, communicating with clients, and networking with other lawyers can help avoid some of the more common pitfalls in appellate practice.

Endnotes

1 Lewandowski v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284 (1979).

2 Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

3 Wis. JI—Civil 1023.5.

4 Security Bank v. Klicker, 142 Wis. 2d 289, 295, 418 N.W.2d 27 (Ct. App. 1987).

5 Id.

6 Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980).

7 Duffey Law Off. S.C. v. Tank Transp. Inc., 194 Wis. 2d 674, 535 N.W.2d 91 (Ct. App. 1995).

8 Olfe v. Gordon, 93 Wis. 2d 173, 181; 286 N.W.2d 573, 576 (1980).

9 Id.

10 Randall v. Bantz, Gosch, Cremer, Peterson & Sommers, 883 F. Supp. 449, 450 (D.S.D. 1995).

11 Cook v. Continental Cas. Co., 180 Wis. 2d 237, 249-250, 509 N.W.2d 100 (Ct. App. 1993).

12 See Gustavson v. O’Brien, 87 Wis. 2d 193, 199, 274 N.W.2d 627, 630 (1979).

13 7 Am. Jur. 2d Attorneys at Law 216 (current on Westlaw through Jan. 2023 update).

14 Seeid.; Glamann v. St. Paul Fire & Marine Ins. Co., 144 Wis. 2d 865, 424 N.W.2d 924 (1988).

15 Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

16 DeThorne v. Bakken, 196 Wis. 2d 713, 539 N.W.2d 695 (Ct. App. 1995).

» Cite this article: 96 Wis. Law. 33-35 (March 2023).