Evers v. Stearn, 95-2846
| Decision Date | 07 May 1996 |
| Docket Number | No. 95-2846,95-2846 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. William J. EVERS, Plaintiff-Appellant, v. Eric A. STEARN, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Outagamie County: JOHN P. HOFFMAN, Judge.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
William Evers, pro se, appeals a judgment directing a verdict of dismissal after he presented his evidence in what the trial court characterized as a legal malpractice claim. Evers claims that the trial court erroneously directed the verdict because Evers' claim was not based upon legal malpractice but rather a conspiracy between his former criminal defense attorney, Eric Stearn, and the prosecutor. Specifically, Evers argues that (1) Stearn was negligent and breached his contract with Evers; (2) Stearn conspired with the assistant district attorney to deprive him of due process of law; and (3) expert legal testimony was not required to prove his allegations. We reject his argument and affirm the judgment.
The record reveals that in July 1987, Stearn was appointed through the State Public Defender's office to represent Evers on approximately forty-eight felonies and 113 predicate acts. Evers was eventually convicted of twenty-three counts and those convictions were affirmed on appeal. See State v. Evers, 163 Wis.2d 725, 472 N.W.2d 828 (Ct.App.1991). Stearn and Evers had numerous disagreements throughout the course of the proceedings, which culminated in a five-month trial that started in February 1988. When Evers requested that Stearn be removed as his attorney, the trial court denied the motion and ordered that the two work out their differences.
Approximately two and one-half weeks before the start of the criminal trial, the State brought contempt of court proceedings against Evers that give rise to Evers' instant claims. The contempt proceedings were eventually dismissed, but not before they led to a court order limiting Evers' jail telephone privileges. The court ordered that Evers could not use the telephone to contact anyone other than his wife, his attorneys and his investigators. 1 The court stated that it would permit a motion for reconsideration of its order. Evers testified that he asked Stearn to bring a motion for reconsideration, that Stearn agreed, but failed to do so. Stearn also agreed with the State to postpone the return date on the contempt matter until after the criminal trial.
After Evers rested his case against Stearn, Stearn moved for directed verdict pursuant to § 805.14, STATS. 2 The trial court granted the motion and dismissed Evers' claims.
Evers argues that the trial court erroneously granted the motion. He contends that the record demonstrates a factual dispute that Stearn was negligent and breached his contract with Evers. We disagree. An attorney is held to use a reasonable degree of care and skill and to possess to a reasonable extent the knowledge required to a proper performance of duties of his profession. Olfe v. Gordon, 93 Wis.2d 173, 179-80, 286 N.W.2d 573, 576 (1980). If injury to his client results as a consequence of the lack of such knowledge or skill or the failure to exercise it, the client may recover damages to the extent of the injury sustained. Id. at 181, 286 N.W.2d at 577. "Expert testimony should be generally required to establish the standard of care applicable to an attorney whose conduct is alleged to have been negligent and further to establish that his conduct deviated from that standard." This general rule is subject to two exceptions: (1) when the record discloses obvious, apparent or undisputed breach; or (2) where the matters in issue fall with the area of common knowledge and lay comprehension not involving specialized knowledge or skill. Id. at 181-82, 286 N.W.2d at 577....
To continue reading
Request your trial