07 | 19 | 2006 Posted By Cassandra Crotty

In "Appellate Legal Malpractice" Cases, The Trial Court Decides Whether The Appeal Would Have Been Successful

The Illinois Supreme Court has held that  in legal malpractice lawsuits alleging that a lawyer committed malpractice by failing to appeal an adverse verdict, the issue of whether the appeal would have been successful is a matter for the trial courts to decide, rather than a jury.  Governmental Interinsurance Exchange v. Judge, (May 18, 2006), opinion here.  The Court went on to explain that the issue of proximate cause in an appellate malpractice action will never be a question of fact for the jury. 

According to the Professional Liability Reporter (July 2006),  The following is a list of other courts that have also held that the question of whether an appeal would have been successful is decided by the trial court, and not the jury in malpractice cases:

  • Yarcheski v. Reiner, 669 N.W.2d 487 (S.D. 2003)
  • Tinelli v. Redl, 199 F.3d 603 (2d Cir. 1999)
  • Steeves v. Bernstein Shur Sawyer & Nelson, 718 F.Supp. 186 (Me. 1998)
  • Charles Reinhart Co. v. Winiemko, 513 N.W.2d 773 (Mich. 1994)
  • Millhouse v. Wiesenthal, 775 N.W.2d 626 (Tex. 1989)
  • Jones v. Psimos, 882 F.2d 1277 (7th Cir. 1989)
  • Daugert v. Pappas, 704 P.2d 600 (Wash. 1985)
  • Floyd v. Kosko, 329 S.E.2d 459 (S.C.App. 1985)
  • Hyduke v. Grant, 351 N.W.2d 675 (Minn. App. 1984)
  • Bock v. Zittenfield, 672 P.2d 1237 (Or.App. 1983)
  • Jablonski v. Higgins, 453 N.E.2d 1296 (Ohio Tr. 1983)
  • Dow Chemical Co. v. Ogletree Deakins Nash Smoak & Stewart, 514 S.E.2d 836 (Ga.App. 1999)
  • Hunt v. Foster, Waldeck, Lind & Gries, Ltd., 1998 WL 373276 (Minn. App. 1998)