The case is captioned Patterson v. Kohn, 2017 AP 1524, decided by the Wisconsin Court of Appeals. Patterson sued his former criminal defense lawyer for failing to properly investigate his defense (self-defense to a reckless homicide charge), and interview witnesses. Patterson was unable to obtain an expert witness to support his claims and his case was dismissed. The dismissal was affirmed on appeal. The Court of Appeals rejected Patterson’s argument that the breach did not require an expert witness.
¶10 Patterson relies on the exceptions to the rule requiring expert testimony by arguing that his “legal malpractice claim can be decided as a matter of law based on undisputed and conceded facts, expert testimony is unnecessary in this case” (emphasis omitted). Patterson’s argument centers entirely on what he considers to be Kohn’s negligence. Specifically, Patterson argues that Kohn negligently failed to follow “instructions” by failing to investigate certain facts, circumstances, and witnesses to support Patterson’s self-defense theory, and that the negligence led to his conviction. We do not agree with Patterson that this cause of action involves only a failure to follow instructions. Patterson’s legal malpractice cause of action implicates the applicable standard of care attorneys owe their clients, statutes and case law regarding criminal procedure, and the judgment criminal attorneys exercise on a case-by-case basis. See Pierce v. Colwell, 209 Wis. 2d 355, 362, 563 N.W.2d 166 (Ct. App. 1997) (“[E]xpert testimony will generally be required to satisfy this standard of care as to those matters which fall outside the area of common knowledge and lay comprehension.”). We conclude that under the facts of this case, Patterson was required to present expert testimony to prove his claim that Kohn’s alleged negligence caused his injury or damage. A lay person would not understand the evidence necessary for a successful (from Patterson’s standpoint) McMorris hearing, the discovery and investigation process in a criminal matter, or the level of discretion afforded to criminal defense attorneys.
¶11 Moreover, Patterson ignores a key requirement in legal malpractice actions stemming from an attorney’s representation in a criminal matter— Patterson’s claim requires proof of actual innocence. See Hicks v. Nunnery, 2002 WI App 87, ¶¶32-50, 253 Wis. 2d 721, 643 N.W.2d 809 (legal malpractice claim in criminal context requires proof of actual innocence). Put another way, Patterson has not made any showing that Kohn’s actions or inactions caused him harm. Patterson’s contention is that, if certain persons had testified to certain facts in his criminal case, he would not have been convicted. Patterson names those persons in his complaint. However, Patterson proffers no admissible evidence in the record to support his contention that those persons would have, if called, testified as Patterson contends.
This case, while routine, demonstrates that it is almost impossible to prove legal malpractice against a criminal defense lawyer. First, you must show that you are actually innocent of the charge. Second, you can establish the elements of legal malpractice.