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Charles Reinhart Co. v. Winiemko
Citations: 513 N.W.2d 773; 444 Mich. 579Docket: Docket Nos. 94990, 94991, (Calendar No. 7)
Court: Michigan Supreme Court; March 1, 1994; Michigan; State Supreme Court
The Michigan Supreme Court addressed whether the issue of proximate cause in a legal malpractice claim arising from an appeal should be determined by a court or a jury. The court concluded that this issue is a matter of law for the judiciary because it inherently involves legal questions about the potential success of the appeal. The trial court had not handled the issue as a matter of law, and the court asserted that this approach does not infringe on the right to a jury trial. Consequently, the court reversed the Court of Appeals' decision and remanded the case for further proceedings. The case originated when Dr. and Mrs. Kauffman sued Charles Reinhart Company for allegedly altering a real estate conveyance to include a previously undisclosed utility easement. A jury found Reinhart liable for fraud and negligence, awarding a total of $100,000 in damages. After the Kauffmans’ case, Reinhart hired attorney Ronald C. Winiemko for an appeal, but he failed to file the necessary brief and respond to dismissal motions, resulting in the dismissal of the appeal. Reinhart subsequently filed a malpractice lawsuit against Winiemko and his firm, claiming that his negligence deprived them of a successful appeal and the opportunity to negotiate a better settlement. Winiemko sought summary disposition, arguing that Reinhart could not prove proximate cause, asserting that the appeal would not have succeeded due to prior legal missteps by the trial attorney. The trial court allowed the plaintiff's legal experts to testify about the likelihood of success on appeal, leading to a jury finding Winiemko guilty of professional malpractice and breach of contract, with damages awarded. The Court of Appeals affirmed this ruling, stating that proximate cause in legal malpractice cases is a factual question, which transforms legal questions from the underlying case into factual ones in malpractice actions. Specifically, in appellate malpractice, the jury must determine if a reasonable appellate court would likely have granted relief to the appellant in the original case. A unanimous opinion clarified the elements of a legal malpractice claim in Michigan: (1) existence of an attorney-client relationship; (2) negligence in legal representation; (3) negligence as a proximate cause of injury; and (4) proof of the injury's fact and extent. The burden of proof lies with the plaintiff. The proximate cause element is particularly challenging, as plaintiffs must demonstrate that but for the attorney's malpractice, they would have succeeded in the original suit, effectively proving two cases in one. In malpractice claims involving appeals, the plaintiff must establish two causation aspects: first, that the attorney's negligence led to an unfavorable appeal result; and second, that this outcome negatively impacted the underlying litigation. The determination of these factual causations is contested between the parties, with the plaintiff advocating for jury assessment and the defendants arguing for judicial determination of the legal merit of the underlying appeal. The defendants maintain that since appeals typically hinge on legal issues, the question of whether an attorney's negligence caused the loss of appeal success is predominantly a legal matter within the proximate cause analysis. The Texas Supreme Court determined that the success of an appeal hinges on legal and procedural analysis, which is best suited for judges rather than juries. The plaintiff's request for the jury to evaluate the potential success of an appeal would require them to act as appellate judges, reviewing trial records and determining reversible errors—tasks that fall exclusively within judicial authority. Although juries can assess proximate cause in malpractice suits, appellate matters necessitate judicial resolution. Similarly, the Washington Supreme Court indicated that determining whether a client would have succeeded on appeal due to an attorney's failure is typically a jury's role, but it fundamentally involves legal analysis. Michigan's Constitution grants judicial power to its courts, mandating that legal interpretation and application reside solely with judges. This principle is reinforced by historical judicial commentary, asserting that legal interpretation is a judicial function, not one for expert witnesses or juries. The excerpt argues that the complexity of appellate law does not exceed that of other professional fields like medicine or engineering, where juries commonly determine causation. The dissenting opinion suggests that treating legal malpractice differently implies a bias favoring the legal profession and undermines the jury system. It contends that attorney-judges' claims of superior capability in deciding such cases appear elitist, as juries are equally capable of handling complex issues, including those in other professional domains. The court's authority is rooted in its constitutional role to determine the law, independent of procedural contexts. It emphasizes the necessity of judicial decisions on legal issues to prevent juries from imposing liability based on incorrect legal interpretations, which could evade proper appellate scrutiny. In the case of Martin v. Hall, a jury erroneously attributed liability to an attorney for not raising a double jeopardy argument, which was later overturned by the Court of Appeals due to misinterpretation of the law. This highlights that jury findings, treated as fact, are subject to stricter review than legal rulings, which can be reconsidered de novo. The document argues against comparing legal determinations to medical or engineering cases, asserting that law operates with definitive outcomes rather than conflicting probabilities. This distinction reinforces that legal causation must be based on established principles rather than speculative judgments by a jury. The Oregon Supreme Court's perspective further supports that predicting court outcomes should not involve juror guesswork regarding legal principles. Legal issues are thus determined by established law, making summary disposition appropriate without factual disputes for jury consideration. The excerpt addresses the distinction between legal causation in a malpractice case and the retrospective prediction of court behavior regarding legal issues. It argues that the focus in malpractice cases should be on what the outcome would have been if legal issues had been appropriately presented, rather than reconstructing actual judicial behavior. It emphasizes that while legal issues can be complex and ambiguous, they are resolved through a reasoned application of neutral legal principles rather than personal biases of judges. Disagreements among judges do not negate the possibility of achieving a correct legal outcome. The text critiques the plaintiff's position, which implies that outcomes can vary due to subjective factors, as undermining the rule of law. It asserts that legal legitimacy relies on adherence to established legal principles, and emphasizes that juries should remain factfinders, not arbiters of law, preserving their traditional role in the judicial process. The excerpt ultimately reaffirms the principle that the law, as a system, should govern consistently and impartially, independent of individual judicial preferences. The judiciary's role in determining questions of law is fundamental and well-established, serving to affirm its existence and purpose. At least nineteen jurisdictions have classified proximate cause as a legal issue for the courts, with no contrary decisions reported. Other jurisdictions have similarly treated related legal issues in attorney malpractice cases as court matters. Legal commentators also agree on this classification. Consequently, the court holds that proximate cause in this case is a matter for judicial determination, as the success of an appeal inherently involves legal questions. The plaintiff contends that the trial court ruled on proximate cause as a legal matter by stating the plaintiff would have succeeded on appeal. In contrast, defendants argue that the jury was responsible for this determination. The transcript reveals that the judge believed the jury should decide whether the underlying suit would have been successful, indicating that the court did not consider it a legal question. Therefore, the court's ruling must be reversed. Additionally, the plaintiff argues that reversing the Court of Appeals infringes upon the right to a jury trial as protected by the Michigan Constitution. The court emphasizes that interpreting the Constitution involves understanding the intent of its ratifiers, which historically has included preserving the right to jury trials while also acknowledging the judiciary's authority to determine legal issues. The right to a jury trial does not negate the judiciary's responsibility to rule on legal matters, a principle recognized for over 150 years. There is no indication that the framers of the 1963 Constitution intended to change this long-standing separation of powers between judge and jury. The right to a jury trial is not violated when a court assesses the legal merits of an appeal in a legal malpractice action alleging negligence. The defendant’s appeal was lawfully dismissed, indicating no deprivation of the right to a jury trial. The determination of whether an underlying appeal would have succeeded is reserved for the court, as it involves legal issues exclusive to the judiciary. The trial court failed to address this matter as a legal question, and a court’s decision on such issues does not infringe upon a litigant's jury trial rights. Consequently, the Court of Appeals' decision is reversed, and the case is remanded for further proceedings. Concurring opinions emphasize that the legal questions arising from appellate malpractice should be resolved by the court, not a jury. The concurring judges agree that the legal system aims to uncover truth and apply it, though they acknowledge its inherent limitations. Unlike typical malpractice cases, where causation can be demonstrated through reenactments, appellate malpractice centers on predicting how courts would have ruled on a legal question. Allowing a jury to make such determinations is compared to asking a jury to interpret a person's thoughts, which is impractical. The complexity of determining how an appeal should be adjudicated is acknowledged, reinforcing the necessity for judicial resolution in these matters. The central issue is determining how an appeal would have been decided if it had been timely filed. The dissenting opinion argues against the majority's view that causation in appellate malpractice is solely a legal question for the trial judge. Instead, it posits that causation is a factual question best resolved by a jury. In establishing a prima facie case of appellate malpractice, a plaintiff must demonstrate that the defendant's negligence was a proximate cause of the plaintiff's injury, specifically proving that the plaintiff would have succeeded in the underlying appeal absent the negligence. The dissent emphasizes that this determination requires a hypothetical analysis of how the appellate court would have ruled based on the law at the time of the unfiled appeal. Unlike typical legal inquiries where the judge articulates current law, the malpractice context necessitates a factual examination of the law as it existed in the past, transforming the question from "what is the law?" to "what was the law?" This retroactive inquiry is akin to any factual determination, asserting that the applicable law is a factual assertion rather than a legal conclusion, thus necessitating a decision by a factfinder rather than a judge. The passage critiques the approach to determining causation in appellate malpractice cases, emphasizing that the identification of the applicable law should not exclude the jury's role in applying that law to the facts. It asserts that, under Michigan law, questions of fact are typically resolved by a jury and argues against altering this principle merely because the issue arises in an appellate malpractice context. The author highlights that the process of applying law to fact is essential for causation determinations, which should involve a jury's input. Additionally, the excerpt raises concerns about the trial court's ability to make determinations in the absence of a genuine legal controversy, which is a prerequisite under Michigan law for judicial review. It points out that resolving a hypothetical appeal lacks the necessary justiciability, as it does not present a live controversy between parties with adverse claims. The author also critiques the majority's distinction between appellate malpractice and other professional malpractice cases, arguing that the rationale used by the majority is flawed and risks alienating other professions from the legal system. The conclusion emphasizes that while legal issues can have one correct answer, this should not negate the jury's essential role in assessing causation. An appellate court's authority is likened to that of a baseball umpire, asserting that its decisions are deemed correct not by inherent accuracy but because it holds the final say within its jurisdiction. This implies that a single "correct" answer to legal questions may exist, contingent upon the highest court's ruling in a jurisdiction. However, the validity of this notion hinges on whether causation in appellate malpractice cases is classified as a legal question. The author contends that determining causation does not necessitate a jury's interpretation of the law; instead, juries must ascertain what the law was and apply it to hypothetical scenarios of an unpursued appeal. Such jury determinations do not constitute binding legal rulings or principles, nor are they recorded as legal doctrines. The majority's reasoning, which seeks to categorize causation in appellate malpractice distinct from other professional malpractice, is critiqued for asserting that legal issues possess only one correct resolution, thereby eliminating the potential for legal disputes. The author argues against this premise, stating that similar "neutral" principles exist across various professions, including medicine and engineering, despite the complexities and disagreements inherent in applying them. Thus, acceptance of the majority's rationale implies that nearly every malpractice situation could yield a singular correct answer, although alternative, valid explanations may also exist. This recognition of possible probabilities in various fields, including law, medicine, and science, highlights the nuanced nature of professional malpractice determinations. Probabilities in legal scenarios suggest that a universally "correct" answer may not exist, as reasonable jurists can disagree on the appropriate conclusions. If juries can determine causation in various professional malpractice cases, there is no justification for excluding jury involvement in legal malpractice cases. The majority's reasoning, which posits that appeal issues are purely legal and therefore not subject to jury interpretation, is flawed. Appeals can involve factual determinations that juries are qualified to make. The majority erroneously assumes that judges are better suited than juries to identify the "correct" answer in legal matters. This reasoning parallels the idea that professionals in other fields, such as medicine or engineering, are inherently more qualified than juries to make determinations in their respective domains. The argument put forth by the majority creates an exception for attorneys within the jury system, highlighting a bias that could undermine public confidence in the legal profession and alienate other professions. Ultimately, the structure of the legal system fails to recognize that causation in legal malpractice should be determined by juries, just as it is in other professional malpractice cases. Permitting a jury to determine causation in appellate malpractice cases, even hypothetically, does not undermine the law or judiciary more than similar determinations in other malpractice contexts, such as medical or engineering cases. Juries regularly assess potential outcomes based on alternative actions taken by defendants, which is consistent across various professional domains. While juries should not create law, they are tasked with evaluating probabilities of outcomes, similar to their roles in other types of malpractice claims. The distinction between "proximate cause" and "cause in fact" is critical in appellate malpractice cases. A plaintiff must prove that the defendant's negligence was a proximate cause of the injury, and although the majority acknowledges that these concepts are distinct, it downplays their relevance to the case. In Michigan, proximate causation involves legal determinations about an actor's liability for harm and is appropriately resolved by a trial judge, particularly since it is a necessary element of a prima facie case in appellate malpractice claims. Proximate cause serves as a preliminary determination regarding whether a plaintiff has sufficiently alleged claims to warrant jury consideration. Cause in fact, or "but for" causation, refers to the specific cause that directly results in an event, without which the event would not happen. Although often confused with proximate cause, cause in fact is fundamentally a factual issue for the jury to decide, while proximate cause is a legal issue for the trial judge. In the current case, the trial court appropriately ruled that the plaintiff had established enough elements to submit the proximate cause question to the jury, which the majority incorrectly contested. The trial judge confirmed that the plaintiff met the criteria for a prima facie case of appellate malpractice, allowing the jury to determine whether the defendant's actions were the direct causes of the plaintiff's injury. The majority's position overlooks the trial judge's explicit ruling and erroneously suggests that causation determinations must be reserved for the judge. However, it is established that not all "suit within a suit" scenarios necessitate a judicial resolution prior to trial, as some may involve factual issues suitable for jury evaluation. Key points include the necessity for a jury to resolve factual issues regarding lost opportunities to settle and actual damages stemming from an attorney's failure to appeal. The "suit within a suit" concept aims to ensure that damages claimed due to attorney negligence are substantiated by factual evidence rather than speculation. The plaintiff's allegations suggest that a proper appeal by the defendant would have prevented the need to pay a damage judgment, which constitutes the actual damages incurred. This highlights the rule of certainty in damage claims, emphasizing that proof must be based on factual evidence. The author agrees with previous court opinions that the determination of damages and the underlying factual issues should be adjudicated by a jury. There is also disagreement with the majority's assertion that the issue has been universally accepted as a matter of law across jurisdictions. Citing cases such as *Phillips v Clancy* and *Selsnick v Horton*, the author clarifies that these cases support the view that issues of causation and negligence in appellate malpractice should be treated as mixed questions of law and fact, requiring jury involvement. Legal questions are reserved for judges, while factual determinations rest with juries. A finding of "causation" is essential for the case, as determined by the Nevada Supreme Court, which entrusted the issue of causation to a jury. Several decisions cited in support by the majority are deemed unpersuasive for various reasons: in Chicago Red Top Cab Ass'n, Inc v. Gaines, the court did not address causation due to lack of alleged injury; Jones v. Psimos and Dings v. Callahan similarly did not address causation; Cabot, Cabot, Forbes Co v. Brian indicated that causation and damage questions are for the jury but did not directly address the issue; Romano v. Weiss narrowly discussed causation without a jury trial; Rinehart v. Maiorano did not raise or discuss causation; Goldstein v. Kaestner only reviewed standards without addressing causation; and several other cited cases likewise failed to discuss causation. Of the eight remaining cases that could support the majority position, only two are from the highest state court. The author of the dissent would affirm the Court of Appeals decision, emphasizing that the majority's supportive cases do not directly substantiate their position. Additional notes include procedural details regarding the parties involved and the handling of motions and complaints related to the case. Plaintiff reached a settlement of $38,000. Defendant filed multiple motions, including for summary disposition before and after the trial, as well as a directed verdict following the plaintiff's opening statement. Legal causation in malpractice cases involves distinguishing between "cause in fact" and "proximate cause." It is essential for the plaintiff to demonstrate that the appellate court would have had the jurisdiction to review the case, would have granted review, and that its judgment would have been altered upon review. If the appeal requires a petition for review, the plaintiff must convince the trial judge of the issue's public importance or the significant nature of the error. The plaintiff argued that the attorney's initial agreement to file the appeal should prevent him from claiming it would have failed. However, the attorney's advocacy does not warrant punishment in this case, as differing views among competent attorneys are commonplace in legal practice. Adopting the plaintiff's suggestion could deter attorneys from pursuing complex cases due to fears of future malpractice claims, contrary to the intentions of the Michigan Rules of Professional Conduct, which allow for good-faith arguments for changes in law. Winiemko should be allowed to present his complete defense, especially since it is undisputed that his failure to timely file a brief resulted in the dismissal of the appeal. The parties reference the case of Cornelissen v Ort as relevant, but this case primarily focused on attorney liability and did not address proximate cause, rendering it ambiguous and largely unpersuasive. An unpublished opinion from Whipple v Proctor also lacks persuasive value. The current case essentially presents an issue of first impression regarding proximate cause in legal malpractice actions. Distinction is made that in malpractice cases not limited to appellate processes, proximate cause may be a factual issue, as supported by relevant case law. The Washington Supreme Court's perspective aligns with the view that causation in legal malpractice mirrors ordinary negligence, suggesting that the trier of fact should determine whether a client would have succeeded but for the attorney's negligence. In trial level malpractice, an attorney's negligence can either prevent a case from being properly tried or lead to a substandard presentation of the client's case. If the underlying matter could have been adjudicated by a jury or judge, the jury in the malpractice case should resolve factual disputes regarding that original case. Legal malpractice typically requires the trier of fact to assess negligence, proximate cause, and damages based on recreated evidence, with jury instructions mirroring those of the underlying trial. The judiciary's role is to interpret the law and establish the parties' rights. Experts cannot define legal terms or the law's meaning, and causation in appellate malpractice hinges on the law as it existed at the time of the original appeal. Changes in law after the fact do not apply retroactively to the malpractice case. Summary disposition can resolve both factual and legal issues, thereby potentially excluding certain matters from jury consideration. Every malpractice case must overcome summary disposition standards before proceeding to a jury, which does not imply a unique exemption for attorneys. A genuine controversy exists in attorney malpractice cases, affirming the adversarial nature of claims between plaintiff and defendant. Causation may be a legal question when reasonable minds can only draw one conclusion. The law in Michigan is dynamic, evolving with new case law, statutes, and constitutional changes, affecting outcomes in similar factual situations over time. Legal decision-making fundamentally involves the neutral application of established legal principles. Most legal controversies, particularly common cases, yield clear and predictable outcomes, suggesting that radical indeterminacy in law is unlikely. A significant number of cases are straightforward, indicating that principled decision-making prevails and that appellate decisions typically exhibit doctrinal certainty. Research indicates that dissenting opinions are rare, reinforcing the notion that there is often a uniquely correct resolution to the majority of cases. Judges are tasked with objectively determining the right decision based on a structured system of rules, operating independently of their personal preferences or desired outcomes. The courts are expected to adhere to neutral principles that apply uniformly to all issues at hand. Principled legal reasoning, as articulated by Roscoe Pound, encompasses a body of authoritative precepts and a traditional technique for applying these precepts, essential for the administration of justice. While parties may believe they possess strong arguments in litigation, this belief does not imply legal indeterminacy; rather, it reflects the competitive nature of legal disputes. Professor Dworkin emphasizes that legal situations often have definitive right answers, even if their determination can be contentious. Uncertainty regarding a legal question does not negate the existence of a correct answer, paralleling the uncertainty about an individual's guilt not eliminating the possibility of their culpability. The rule of law mandates that justice must be knowable to individuals, allowing them to understand legal requirements and recognize abuses by law enforcement. Adherence to formal and procedural aspects of the rule of law enables individuals to act appropriately and coordinate actions to foster societal peace with minimal conflict. This framework addresses issues of enforcement errors and abuses. Justice Scalia emphasizes that clarity in law is essential as the growing number of laws increases the stakes of legal uncertainty. Chief Justice Marshall has underscored the principle that the U.S. operates under laws, not individuals, reinforcing the judiciary's exclusive role in law enforcement rather than policy creation. Legislative bodies, not the courts, are responsible for establishing guiding principles. Concerns about the credibility of the legal profession may arise from conflicting expert opinions, which could undermine respect for the law. The role of an expert is to clarify evidence, not to present personal opinions on legal standards. In legal malpractice cases, the determination of causation and the potential success of an appeal are strictly legal issues reserved for judges, not juries. This principle prevents juries from deciding cases based on expert speculation or conjecture. Courts have consistently held that issues related to the outcome of an appeal must be evaluated by the trial judge. For instance, the judge must ascertain whether a missed appeal would likely have succeeded, a determination that is a question of law. Several cases illustrate this, such as Croce v. Sanchez, where the trial judge rightly decided the legal outcome of an appeal could not be submitted to the jury, and Fine v. Block, where the court affirmed that appeals’ success is a legal question. Similarly, in Jones v. Psimos, the court emphasized that the burden is on the plaintiff to prove the appeal's viability, which was not established. This judicial authority to assess the merits of an appeal extends to various jurisdictions, reinforcing that juries lack the qualifications necessary to adjudicate legal matters or predict appellate outcomes. Thus, legal expertise is essential in these determinations, and the jury's role is limited to factual disputes regarding professional standards of care. In Floyd v Kosko, the court determined that whether an appeal would have succeeded if heard is a legal question. Specifically, in cases of appellate legal malpractice, causation is also a legal question. The court referenced precedent establishing that a plaintiff must prove that a timely appeal would have legally resulted in a reversal of judgment in their favor. Although negligence and proximate causation typically involve jury determinations, the unique nature of legal malpractice cases may allow courts to rule on these issues as matters of law. The focus of the case at hand was whether damages resulted from the failure to settle the bill of exceptions, a question suitable for resolution via summary judgment. The court noted that the determination of legal issues arising from hypothetical state suits should be addressed by a trial judge. The ruling emphasized that the trial judge must evaluate the underlying action's transcript and record to decide the proper resolution of a petition or appeal. Four elements must be proven to establish a prima facie case of legal malpractice: existence of an attorney-client relationship, acts constituting negligence, and further elements yet unspecified. A proximate causal relationship must be established between the Defendant's negligence and the Plaintiff's injuries, along with the fact and extent of the alleged injury. The Defendant contends that the damage awards in the Kauffman case were appropriate, as one was for exemplary damages and the other for compensatory damages, arguing that an appeal would not have succeeded even if timely filed. The Plaintiff counters that the Defendant's motion should be denied, asserting it is not a legal issue for the Court to decide, but if the Court finds a reasonable likelihood of success on appeal, it could rule in favor of the Plaintiff on that basis. There are no Michigan cases mandating a ruling on the merits of professional negligence claims as a matter of law before trial, as these can be determined by a jury with correct instructions regarding proximate cause and damages, including the potential loss of the opportunity to appeal. The Court determined that the Plaintiff has met the Basic Foods test concerning causation, damages, the attorney-client relationship, and the alleged negligent acts, thereby establishing a prima facie case of professional negligence. The right to a jury trial is preserved but may be waived unless demanded as prescribed by law. The Court's role is to uphold the law established by the people rather than interpret it differently. Expert testimony is restricted to those qualified by relevant knowledge or experience, and whether an appeal would have succeeded is a legal issue for the Court, typically resolved as a matter of law rather than fact. The trial judge effectively guided the jury on applicable law during the appellate malpractice trial, using standard civil jury instructions for professional negligence claims, ensuring that damages were not duplicated. Instructions regarding legal malpractice in Michigan were deemed presumptively proper, aligning with established case law. A hypothetical scenario illustrates the distinction between past and present law, where a change in damage recovery rules does not retroactively affect the determination of causation; thus, the earlier law (Law 1) applies to the causation assessment, despite the current law (Law 2). The articulation of Law 1 does not constitute a legal ruling or create an "issue of law," but serves as a statement of historical fact. Expert witness testimony is permitted to assist the jury in resolving factual disputes about what the law was, without creating legal issues. The overarching goal of resolving these matters is to ascertain causation, which is fundamental to the legal process and jury system, as emphasized by the U.S. Supreme Court. The jury's role involves applying the stated law to the facts as established during the trial, addressing both fact questions and the application of legal standards. The majority's opinion acknowledges this process, emphasizing that legal issues must be resolved through the application of neutral principles to specific factual contexts. Additionally, federal courts are bound to adjudicate actual cases or controversies as mandated by the U.S. Constitution. Michigan's "actual controversy" requirement parallels the U.S. Constitution's "case or controversy" standard, as noted in Girard v Wagenmaker. This principle is relevant in malpractice trials, which inherently involve determining whether professional negligence occurred. Should the Court of Appeals' ruling not have been appealed, it would have become binding law in Michigan. The potential for differing judicial outcomes underscores that legal principles can yield multiple interpretations. The majority asserts that legal issues can be resolved without factual disputes suitable for jury consideration, suggesting that legal outcomes rely on established principles rather than conflicts in scientific probabilities. However, experienced trial counsel might exclude expert testimony that complicates jury deliberations. While the concurring opinion acknowledges that litigation seeks truth and relies on jury decisions, it critiques this approach in appellate malpractice cases, arguing that determining proximate causation should not be left to a jury. The opinion emphasizes that the most reliable method to ascertain an appellate court's likely decision is through an actual appeal. However, this option was unavailable to the plaintiff due to the defendant-attorney's failure to appeal properly, thereby giving rise to the malpractice claim. The text further references past interpretations of causation in legal contexts, highlighting the complexities involved in establishing liability in appellate malpractice situations. Proximate cause includes the necessity for the plaintiff to establish "cause in fact." Moning acknowledges the distinct nature of causation issues, suggesting they can be approached separately. The first issue is causation in fact, which must be distinguished from whether the defendant should be held legally responsible for the injury. The majority agrees that the causation issue raised is indeed one of cause in fact. In legal malpractice cases, the plaintiff must demonstrate that, but for the attorney's alleged negligence, they would have succeeded in the underlying case. This principle is further supported by citations from Prosser and other legal sources. The plaintiff's burden includes proving that the attorney's negligence was the proximate cause of their injury, as outlined in Basic Food Industries v Grant, which sets forth four requirements for establishing a prima facie case of legal malpractice. In the trial, Judge Melinda Morris ruled multiple times on the proximate cause issue, determining that the plaintiff's complaint was sufficient to proceed to a jury. The trial court's ruling on the motion for summary disposition indicates the application of law to facts, affirming whether the plaintiff has presented adequate facts to reach the jury or has pleaded a valid legal claim. The denial of a defendant's motion for summary disposition does not relieve the plaintiff of the burden to prove all elements of a professional malpractice claim, including proximate causation, to a jury. A trial judge may make preliminary determinations regarding causation in the context of summary disposition, but the ultimate proof lies with the plaintiff. The concept of "suit within a suit" applies to ensure that damages claimed due to attorney negligence are not speculative. The plaintiff has not specifically alleged damages from a lost settlement opportunity, though their brief suggests otherwise regarding negotiations with a third party. The complaint does allege damages from an unfavorable settlement due to the defendant's failure to appeal. Various case law references support the notion that causation issues, which involve both law and fact, warrant jury involvement. Although the majority opinion does not rely on certain precedents, it acknowledges differing judicial views on expert testimony regarding proximate cause. The document cites numerous cases demonstrating the complexities surrounding causation determinations in malpractice actions and indicates that unresolved legal questions should typically be decided by the court rather than a jury.