Chocktoot v. Smith

• Jurisdiction: Oregon
• Parties: Clayton CHOCKTOOT, as Personal Representative of the Estate of Wesley Wendell Brown, Deceased, Respondent, v. Richard J. SMITH and Alan M. Lee, Individually, and as co-partners doing business as Smith & Lee, Appellants.
• Citation: 571 P.2d 1255,280 Or. 567
• Court: Oregon Supreme Court
• Decision Date: 06 December 1977

Page 1255

571 P.2d 1255

280 Or. 567

Clayton CHOCKTOOT, as Personal Representative of the Estate of Wesley Wendell Brown, Deceased, Respondent, v. Richard J. SMITH and Alan M. Lee, Individually, and as co-partners doing business as Smith & Lee, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1977.

Decided Dec. 6, 1977.

Howard K. Beebe, Klamath Falls, argued the cause and filed briefs for appellants.

Robert H. Grant, Medford, argued the cause for respondent. With him on the brief were Grant, Ferguson & Carter and Edward W. Grant, Medford.

LINDE, Justice.

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 121/2 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. The court concluded that Brown would have won his case but for defendants' negligence. It therefore directed a verdict for the amount stipulated to be the equivalent of Brown's share of the Lalo estate, had he been declared an heir in the earlier proceedings.

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, ¹ plaintiff must show that the breach caused the injury of which he complains. Either party is entitled to a jury trial of the factual elements of the case. Or.Const. am. art. VII, § 3; ORS 17.030. That includes the factual link of cause and effect, unless it is not disputed or the evidence places it beyond rational dispute. When an attorney's negligence occurred in the conduct of litigation, a jury cannot award damages for plaintiff's loss unless it concludes that the negligence led to an unfavorable or less favorable outcome for plaintiff. The jury in the malpractice case is called upon, in effect, to decide what the outcome for plaintiff would have been in the earlier case if it had been properly tried, a process that has been described as a "suit within a suit." See Harding v. Bell, supra, 265 Or. at 205, 508 P.2d 216, citing sources; Hammons v. Schrunk et al., 209 Or. 127, 305 P.2d 405 [280 Or. 571] (1956). The question is on what information the jury is to reach this conclusion.

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. ² That is the practical answer, although it is not a wholly logical one if the question were really to reconstruct what the earlier jury would have done. What is done, in effect, is to substitute for that question the customary legal fiction of an "objective" standard, in this instance the probable behavior of a reasonable jury, and to let the second jury cast itself in that role. But this solution looks less obvious when the question in the malpractice case is what would have been the outcome of an issue that in the earlier case would have been decided by a court. That question is not so readily answered by letting the jury decide what the court, or a reasonable court, would have done if the jury were that court. For the issue before the court may have been one of fact, or one of law, or both.

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. There are significant differences between the question of negligence and that of its probable consequences, and also between the probable decisions of a dispute of fact and of a dispute of law if the negligence had not occurred.

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....