Defendants, attorneys at law, appeal from a judgment in a malpractice action won by the personal representative of a decedent whom they had represented in an earlier proceeding. The case presents novel issues of procedure in legal malpractice litigation: Who, judge or jury, must decide whether an attorney's negligence harmed his client, and upon what evidence, when the negligence concerned an issue decided by a court rather than a jury?
The course of events may be briefly summarized. Defendants represented Wesley Wendell Brown in a declaratory judgment proceeding in 1972 to determine whether he was an heir of Rowley Lalo, Jr., who died intestate in 1971. Brown's claim depended on whether he was the son of James Brown, the divorced husband of his mother, Rena Chocktoot Brown. Wesley Wendell Brown was born 12 1/2 years after the divorce, but James and Rena Brown had cohabited intermittently during that period. Both James and Rena Brown were deceased at the time of the 1972 proceeding. That case, tried before Judge Sisemore without a jury, resulted in a finding that Wesley Wendell Brown was not the son of James Brown and a decree excluding him from sharing in the Lalo estate.
Wesley Wendell Brown subsequently died. Thereafter plaintiff brought the present malpractice action against Brown's attorneys, alleging that they negligently had failed to discover and present material evidence and to appeal the adverse decision in the earlier case. This malpractice case was tried before Judge Karaman and a jury. At the trial, the court found that the evidence entitled plaintiff to a directed verdict on the issue of defendants' negligence. This is not challenged on appeal. The court also ruled that it had the responsibility to decide whether defendants' negligence changed the outcome in Brown's heirship claim, since this decision would have been made by Judge Sisemore or, if a timely appeal had been filed, by the Court of Appeals.
On appeal, defendants assign as error, first, the court's ruling that it, rather than the jury, was responsible for deciding the issue of "causation," i.e. the consequences of defendants' failure to present the omitted evidence and to appeal, and second, the court's exclusion of testimony on that issue by Judge Sisemore, the judge in the earlier case. Although these are presented as separate issues, the resolution of one follows from that of the other.
An action for damages from the negligence of an attorney is similar to other, more common actions founded on negligence. Harding v. Bell, 265 Or. 202, 508 P.2d 216 (1973). Assuming a duty of the attorney to the plaintiff and the breach of that duty, neither of which is disputed here,
The answer seems easiest when the outcome in the first case which is at issue in the second case itself depended upon a verdict, for then one can in effect let the parties argue the first case to the second jury.
It can be argued that prediction of the probable behavior of the earlier court if defendants had not been negligent is a question of cause and effect like any other and, therefore, to be decided by the jury on such evidence as the parties might offer in the second case. This seems to have been assumed by the parties in the recent case of Shields v. Campbell, 277 Or. 71, 559 P.2d 1275 (1977), in which both sides called upon lawyers for opinion evidence bearing both on the issue of professional negligence and the issue of causation without differentiating between these or between questions of fact or of law. We pointed out that this occurred without objection by appellant, except for an objection that the testimony "invade[d] the province of the jury" which we found not to be well taken. But when the issue is squarely presented, this undifferentiated treatment of the several questions does not withstand closer examination.
On the issue of professional negligence the predictability of adverse consequences is important evidence, but it is not the only evidence. Whether a reasonably competent lawyer would have foreseen and recognized the risk is also relevant. This was part of the purpose of the expert opinion testimony admitted in Shields v. Campbell, supra. In the present case, the trial court found that the evidence entitled plaintiff to a directed verdict on that issue. But when the evidence is such that reasonable people could differ whether defendant fell short of a professional standard, the jury must decide.
The issue of consequences is different. As already mentioned, even when the alleged negligence concerns the conduct of a jury trial, the "causation" issue does not call for reconstructing the probable behavior of the actual jury in that trial. It does not call for bringing the jurors into court and subjecting them to examination and cross-examination to determine what they would have done if the case had been tried differently, nor does it call for expert testimony about the characteristics or the apparent attitudes of those jurors. Although the issue is stated to be the probable outcome of the first case, the second jury is permitted to decide this by substituting its own judgment for that of the factfinder in the earlier case. Once it is accepted that this is what the malpractice jury does, there is no reason why the jury (or a court when sitting without a jury) should not do the same even when the earlier factfinder was a judge, an administrative hearings officer, an arbitrator, a court-martial, or any tribunal deciding on factual grounds. However, no jury can reach its own judgment on the proper outcome of an earlier case that hinged on an issue of law. Unlike its decision of a disputed issue of the professional standard of care, the jury cannot decide a disputed issue of law on the testimony of lawyers.
There is a famous view that prediction or, as Justice Holmes put it, "[t]he prophecies of what the courts will do in fact," is all that is meant by law.
This is an issue in the first instance for the trial judge. The legal consequences of an attorney's failure, in the earlier case, to present a timely pleading or motion or to take an appeal are matters for argument, not proof. This much is implicit in the court's review of the adequacy of pleadings negligently not filed in Harding v. Bell, supra, and Milton v. Hare et al., 130 Or. 590, 280 P. 511 (1929). In each of these cases, this court treated the legal sufficiency of the pleading that, according to the malpractice complaint, should have been presented by the complainant's attorney in the first case as a matter of law to be decided by the court.
We conclude, in short, that in determining the probable consequences of an attorney's earlier negligence in a later action for malpractice, the line dividing the responsibility of judge and jury runs between questions of law and questions of fact. This is not quite the same division as that made by the trial court when faced with the necessity to decide this issue. It drew the line between those questions which would have been for a jury and those for the court in the original proceeding. But that rule would withdraw from the jury in the malpractice trial the evaluation of the probable outcome of purely factual disputes in all nonjury cases, including all equity, probate, or administrative proceedings. As we have stated, there is no reason why the jury cannot replicate the judgment of another factfinding tribunal, whatever its composition.
Dividing the function of judge and jury in determining the consequences of legal malpractice between questions of law and questions of fact leads to these principles for the trial of such cases:
The question what decision should have followed in the earlier case if the defendant attorneys had taken proper legal steps is a question of law for the court. Consequently such legal rulings are also open for briefing and review on appeal.
The question what outcome should have followed if defendants had conducted a proper investigation, presentation (or exclusion) of evidence, or other steps bearing on a decision based on facts remains a question of fact for the jury (or for a judge when the malpractice case is tried without a jury). Similarly, it will be reviewable on appeal only to the same extent as other factual determinations. If the alleged negligence of an attorney in an earlier case involved both legal and factual elements, it would be necessary for the trial court to separate these elements and to instruct the jury accordingly.
In the present case, the trial court, placing itself in the position of Judge Sisemore in the earlier proceeding, concluded that proper presentation of all available evidence would have led to a decision in favor of Wesley Wendell Brown, either at trial or, if not there, then on de novo review on appeal. That conclusion is one of fact from the evidence and should have been left to the jury, unless the court thought that it was beyond reasonable dispute to the point of justifying a directed verdict on the issue of causation as well as negligence.
Reversed and remanded.