Anthony Hicks, Plaintiff-Respondent, v. Willie J. Nunnery, Defendant-Appellant, 253 Wis. 2d 721

¶ 1. DEININGER, J. Attorney Willie Nunnery appeals a judgment entered against him in favor of a former client, Anthony Hicks. A jury found Nunnery had been negligent in his representation of Hicks in a criminal matter, and it awarded Hicks $2,606,950 in damages. Nunnery claims that: (1) the trial court erred in failing to grant his motion for judgment notwithstanding the verdict; (2) he is entitled to judgment in his favor because Hicks failed to prove his innocence; (3) the evidence was insufficient to support the jury's answers on causation; and

(4) Nunnery is entitled to a new trial because of errors at trial or in the verdict, or alternatively, in the interests of justice. ¶ 2. We reject all but one of Nunnery's claims of error. We conclude the trial court erred in not asking the jury to determine whether Hicks was innocent of the offenses of which he was convicted. Accordingly, we reverse the appealed judgment and remand for a trial on the limited issue of Hicks's innocence. BACKGROUND ¶ 3.

Hicks's legal malpractice claim arose out of Nunnery's representation of him in criminal proceedings which resulted in Hicks being convicted and imprisoned for robbery, burglary and sexual assault. We reversed Hicks's conviction in State v. Hicks (Hicks I), 195 Wis. 2d 620, 536 N.W.2d 487 (Ct. App. 1995), concluding that he had been deprived of effective assistance of counsel. The supreme court affirmed our decision, but on other grounds. State v.

Hicks (Hicks II), 202 Wis. 2d 150, 549 N.W.2d 435 (1996) (concluding Hicks was entitled to a new trial in the interests of justice because the real controversy was not fully tried). Hicks was subsequently released after spending more than four years in prison and the State dismissed all charges against him. ¶ 4. The following

summary of background facts from the underlying criminal proceeding is largely taken from our opinion in Hicks I, 195 Wis. 2d at 623-29. D.F., a white female, identified Hicks as her assailant from an eight-man line-up two days after she was sexually assaulted in her apartment. At trial, D.F. testified that she heard a knock on her apartment door, looked through the peephole for approximately ten seconds, and saw a black man who told her that he was her upstairs neighbor. The man asked to use her telephone because his was broken.

D.F. let the man into her apartment after which he sexually assaulted her and robbed her of $10. According to D.F., the assailant was in her apartment between 7:25 a.m. and 7:55 a.m. D.F. also testified that, prior to this incident, no black male had ever been in her apartment and that only once, approximately one-and-one-half years before the assault, a black female had been in her apartment to borrow a blanket. Hicks stipulated that he lived in the same apartment complex as D.F., and that the two apartments were a 90-second walk from each other. ¶ 5.

The State presented testimony from a state crime laboratory analyst that, based on microscopic examination, a Negro head hair found on the comforter of D.F.'s bed, and four Negro pubic hairs found when the police conducted a vacuum sweeping of the apartment approximately fifteen days after the assault, were "consistent" with samples provided by Hicks. The analyst also testified that a Caucasian head hair was found inside the pants Hicks was wearing when he was taken into custody forty-eight hours after the assault. These pants were not "sweat pants," however, which is what D.F. testified her assailant wore.

The analyst testified that, based on microscopic examination, the Caucasian head hair was "consistent" with a sample provided by D.F. ¶ 6. The analyst also explained that all Negro hair shares the same characteristics and all Caucasian hair shares the same characteristics, although not all Negro hair is identical and not all Caucasian hair is identical. She also testified that microscopic comparison of hair, unlike fingerprints, can never yield a definitive identification.

She stated that to a reasonable degree of scientific certainty, the Negro and Caucasian hair specimens "could have" come from Hicks and D.F. respectively. Other than the microscopic comparisons, the State performed no other tests on the hair samples. The State performed serological testing on specimens of semen, blood and saliva obtained at the crime scene, but these tests proved inconclusive. The court granted Hicks's motion to have the semen sent to an out-of-state laboratory for DNA analysis, but the results were also inconclusive. ¶ 7.

The jury found Hicks guilty and the court sentenced him to nineteen years in prison. Hicks subsequently obtained DNA testing of the hairs which had been introduced into evidence by the State during the trial. The results of the DNA testing raised questions about Hicks's guilt. Hicks then filed a motion for a new trial on the grounds of ineffective assistance of counsel, newly discovered evidence, and "in the interests of justice." ¶ 8. At the evidentiary hearing on the motion, Dr.

Charlotte Word of Cellmark Diagnostics testified that the Caucasian head hair, the Negro head hair, and two of the Negro pubic hair specimens did not yield sufficient DNA for analysis. One of the two remaining pubic hair specimens, however, revealed the presence of DNA from two sources. This usually indicates, Word said, the presence of a second source of DNA on the hair shaft, such as blood, semen or saliva. Because of the presence of two sources of DNA, the test results as to this specimen were deemed inconclusive.

Hicks was excluded as the source of the larger amount of DNA on this specimen, but Word could not come to a conclusion as to the fainter source. ¶ 9. The DNA from the remaining specimen was compared to the DNA extracted from Hicks's blood sample. Word testified that Hicks was excluded as the source of the DNA from this specimen. In her opinion to a reasonable degree of scientific certainty, Hicks was not the donor of this hair. Word acknowledged that this opinion was based on the assumption that the DNA on the specimen was from a single source.

She also acknowledged that she could not prove the DNA was from a single source, but she stated that was the most reasonable conclusion based on several factors. In addition, she concluded there was no information to suggest it was not from a single source. ¶ 10. Nunnery testified at the hearing that he was aware that the hair samples would be a major issue in the case. Before Hicks's trial, he knew that the root tissue of hair specimens could be subjected to DNA testing at certain out-of-state laboratories, and he knew of the technology used for that testing.

He did not discuss the matter with his client or with the district attorney, however, nor did he petition the court to have this test performed. When asked why he didn't pursue the testing of the hairs, Nunnery testified that he didn't do so for "strategic reasons." He also testified that, " '[o]ne reason obviously would have been costs .. . and in 20-20 hindsight may have been just a failure to further explore these other technologies in hindsight.'" Hicks I, 195 Wis. 2d at 629. He acknowledged that he did not explore the costs of the tests. ¶ 11. The trial court denied Hicks's motion for a new trial.

The court concluded that there was no prejudice to Hicks resulting from Nunnery's failure to obtain DNA test results for trial because it was not reasonably probable that a new trial with the DNA testimony would result in a different verdict. Hicks appealed, and this court reversed the judgment of conviction and ordered a new trial. We concluded that Hicks had received ineffective assistance of counsel because Nunnery failed to pursue available pretrial DNA testing of the hair specimens collected from D.F.'s apartment.

We reasoned that there was a "probability sufficient to undermine confidence in the outcome that, but for counsel's failure to subject the hair specimens to DNA analysis, the result of the trial would have been different." Id. at 632. ¶ 12. On review, the Wisconsin Supreme Court affirmed our decision on the grounds that Hicks was "entitled to [a] new trial in the interests of justice." Hicks II, 202 Wis. 2d at 150.

The court concluded that, because the hair evidence was such a critical issue at trial and the major issue in the case was identification, in view of the DNA results, "the issue of identification was not fully tried." Id. at 172. The State subsequently dropped all charges against Hicks, and he was released from custody after spending over four years in prison. ¶ 13. Hicks then filed a legal malpractice action against Nunnery.

In his complaint, Hicks alleged that Nunnery was negligent in failing to have the hair specimens subjected to DNA analysis prior to trial and also in failing to procure testimony from a possible alibi witness. Nunnery and Hicks filed cross-motions for

summary judgment, both of which were denied. A jury returned a verdict finding Nunnery negligent for both his failure to obtain DNA testing and his failure to procure the testimony of the possible alibi witness, and it awarded Hicks $2,606,950 in damages. Nunnery filed several post-verdict motions, all of which the trial court denied. Nunnery appeals the judgment against him. ANALYSIS HH ¶ 14. We first address Nunnery's claim that the trial court erred in failing to grant his motion for judgment notwithstanding the verdict (JNOV). Nunnery advances two arguments in this regard.

He first argues that the three-year statute of limitations under Wis. Stat. § 893.54 (1999-2000) bars Hicks's malpractice action because it was filed nearly six years after his conviction. Second, Nunnery asserts that "Hicks failed to prove a legally cognizable injury" because he did not establish "severe emotional distress," which is required in order to prevail on a claim involving the negligent infliction of emotional distress. ¶ 15. We review a trial court's denial of a motion for judgment notwithstanding the verdict de novo, applying the same standards as the trial court. Lisa R.P. v.

Michael J.W., 210 Wis. 2d 132, 140, 565 N.W.2d 179 (Ct. App. 1997). A motion for judgment notwithstanding the verdict accepts the findings of the verdict as true but contends that the moving party should have judgment for reasons evident in the record other than those decided by the jury. Wis. Stat. § 805.14(5)(b); Greenlee v. Rainbow Auction/Realty Co., 202 Wis. 2d 653, 661, 553 N.W.2d 257 (Ct. App. 1996). The motion does not challenge the sufficiency of the evidence to support the verdict, but rather whether the facts found are sufficient to permit recovery as a matter of law. Logterman v.

Dawson, 190 Wis. 2d 90, 101, 526 N.W.2d 768 (Ct. App. 1994). ¶ 16. Hicks commenced this legal malpractice action on December 9, 1997, nearly six years after his conviction on December 19,1991. Nunnery argues that, because Hicks sought damages "primarily" for emotional distress and personal injury, his claim is governed by Wis. Stat. § 893.54. That

section provides a three-year limitation for bringing actions for "injuries to the person." We reject Nunnery's contention and conclude that Hicks's claim is governed by Wis. Stat. § 893.53, which allows six years to bring an action for "injury to the character or rights of another." ¶ 17. The question of which statute of limitations governs a particular claim is one of law which we decide de novo. Acharya v. Carroll, 152 Wis. 2d 330, 335, 448 N.W.2d 275 (Ct. App. 1989). The applicability of the six-year statute of limitations under Wis. Stat. § 893.53 to legal malpractice actions is well established. Id. at 337.

Wisconsin courts, as well as those in other jurisdictions, have concluded that legal malpractice claims do not involve "injuries to the person," as the term is used, in Wis. Stat. § 893.54(1) and similar statutes, because " 'injuries to the person' connotes bodily injuries." Id. (emphasis added). Thus, "[bjecause no other statute of limitations covers a tort action for legal malpractice, the six-year limitation in sec. 893.53, Stats, applies." Id.; see also Hemberger v. Bitzer, 216 Wis. 2d 509, 516, 574 N.W.2d 656 (1998). ¶ 18. Citing Estate of Kohls v.

Brah, 57 Wis. 2d 141, 203 N.W.2d 666 (1973), Nunnery argues that the applicable statute of limitations in a malpractice action must be determined by the nature of the injuries for which damages are sought. The plaintiff decedent in Estate of Kohls allegedly died of aplastic anemia resulting from her treatment by two dentists. Id. at 143. The issue before the supreme court was whether to apply the three-year statute of limitations for "injuries to the person" or the six-year statute of limitations for contract actions to the malpractice action.

The court concluded the former should apply, stating: While a malpractice action can be brought either in tort or in contract, it is an action to recover damages for injuries to the person. The word "action" as used in the three-year statute of limitations "... has reference to the subject-matter or nature thereof, not to its form as a matter of remedial procedure.

Whether it be in tort or on contract, it is an action to recover damages for injuries to the person and comes alike under the terms of the statute ....".. .The appellant has an option as to remedies, but, whichever route he chooses, the 'action for injuries' statute of limitations (... the three-year statute) applies. Id. at 144 (footnotes omitted). ¶ 19.

The present action, however, alleges legal not medical malpractice, and unlike the latter, " 'legal malpractice does not cause personal injuries and, therefore, is not governed by a personal injury tort statute of limitations.'" Acharya, 152 Wis. 2d at 337 (citation omitted). We conclude that even though a plaintiff might plead and testify to having suffered emotional distress on account of a lawyer's malpractice, that fact does not convert the claim into one seeking redress for "injuries to the person" (i.e., bodily injuries).

The underlying injuries in a legal malpractice claim are to rights and interests of a plaintiff that go beyond, or at least are different from, injuries to his or her person under Wis. Stat. § 893.54. ¶ 20. We thus reject Nunnery's characterization of Hicks's injuries as being "primarily" personal injuries.

Hicks alleged in his complaint that "[bjecause of [Nunnery's] unlawful actions ... [Hicks] was criminally convicted and imprisoned, and he sustained lost wages, injury to his reputation, and mental and emotional distress, for all of which he seeks compensatory damages in an amount deemed just by the Court." Hicks's trial testimony similarly encompassed a broad range of injuries he claimed to have suffered on account of Nunnery's negligent representation. ¶ 21. Hicks testified that his character and reputation were injured when he was labeled a convicted rapist.

He said that he was harassed in prison for being a convicted rapist, and again upon his release by people in the community who would refer to him as a rapist even after all charges against him were dropped. He testified as to the impact this had on his family, including his son who was "ridiculed" at school because of Hicks's rape conviction, and he explained that he moved with his wife and children to Houston in order to escape the stigma and ridicule.

Hicks also testified to losing income while in prison, and he said that his wife's wages had been garnished due to their failure to meet financial obligations during Hicks's absence. Finally, and most obviously, Hicks was deprived of his liberty during the four years of his incarceration. ¶ 22. In short, although the injuries for which Hicks sought recovery no doubt caused him emotional distress, it would be incorrect to label his claim for that reason as "primarily" one for "injuries to his person" within the meaning of Wis. Stat. § 893.54.

Adopting Nunnery's position would require courts to distinguish legal malpractice claims alleging "primarily" personal-injury-type damages, such as emotional distress, from those alleging damages "primarily" of some other type. Or, as he further suggests, separate statutes of limitations might need to be applied to different elements of damages alleged in a single legal malpractice action. We conclude that adopting either approach would likely lead to confusion, inconsistency, and time-consuming litigation over limitations issues.

Injuries and damages alleged in legal malpractice claims could easily be characterized in numerous ways, with differing statutes of limitations arguably applicable in what are at bottom the same cause of action. See Wilson v. Garcia, 471 U.S. 261, 272-75 (1985). ¶ 23. In

summary, we conclude that the fact that Hicks claimed to have suffered mental and emotional distress as a result of his conviction and confinement does not remove Hicks's legal malpractice action from the broad scope of Wis. Stat. § 893.53. The six-year statute of limitations applies to Hicks's claim against Nunnery, and the trial court did not err in denying Nunnery's JNOV motion on this ground. ¶ 24.

Nunnery next contends that he was entitled to JNOV because Hicks "failed to prove a legally cognizable injury." He again argues that Hicks's evidence of damages was "principally the emotional distress he claimed to suffer" as a result of his conviction and prison sentence. Nunnery claims that in order to recover any damages, it was incumbent on Hicks to prove "severe emotional distress," which, in Nunnery's view, Hicks failed to do.

Nunnery cites the lack of any "psychological or psychiatric testimony submitted evidencing the development of neurosis" and the lack of "evidence of loss of function related to the emotional distress." Nunnery acknowledges that Hicks testified that he cried repeatedly while in prison, and that he feared for his own safety and that of his family during his incarceration, but notes that Hicks also testified that while in prison he engaged in recreation, such as playing dominos and basketball. ¶ 25.

We accept Nunnery's assertion that in order to be directly and specifically compensable in a tort action in Wisconsin, emotional distress must be "severe." Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 652-53, 517 N.W.2d 432 (1994). While other elements once required to recover damages for emotional distress are no longer needed (e.g., intentional infliction, a physical injury or manifestation, being in a "zone of danger"), the requirement that emotional distress be severe before any recovery may be had survives. Id. at 653 n.23.

Many of the former impediments to a recovery for emotional distress are deemed no longer necessary to prevent fraudulent claims, but the severity requirement persists in order to ensure that life's "minor disturbances" not be occasions for lawsuits. See id. at 639. ¶ 26. "Severe emotional distress" has been defined as follows: The plaintiff must demonstrate that he suffered an extreme disabling emotional response to the defendant's conduct. The severity of the injury is not only relevant to the amount of recovery, but is a necessary element to any recovery.

The plaintiff must demonstrate that he was unable to function in his other relationships because of the emotional distress caused by defendant's conduct. Temporary discomfort cannot be the basis of recovery. Alsteen v. Gehl, 21 Wis. 2d 349, 360-61, 124 N.W.2d 312 (1963). This court has explained that "severe emotional distress is anxiety of such substantial quantity or enduring quality that no reasonable person could be expected to endure it." Evrard v. Jacobson, 117 Wis. 2d 69, 73, 342 N.W.2d 788 (Ct. App. 1983).

Several appellate decisions note the presence of expert testimony in the record as supporting the severity of a plaintiffs emotional distress, but we are aware of none that require expert testimony as a legal prerequisite for recovery. See, e.g., La Fleur v. Mosher, 109 Wis. 2d 112, 114, 325 N.W.2d 314 (1982); Estate of Plautz v. Time Ins. Co., 189 Wis. 2d 136, 155, 525 N.W.2d 342 (Ct. App. 1994). ¶ 27. La Fleur involved a fourteen-year-old girl who sued the City of La Crosse for negligent infliction of emotional distress after she was held in a jail cell for some thirteen hours without food, water and blankets.

The supreme court noted that a psychiatrist had diagnosed the plaintiff "as having suffered a traumatic neurosis as a result of the confinement," La Fleur, 109 Wis. 2d at 114, but in reaching its conclusion that her action could be maintained even though she suffered no physical injuries, the court observed that "negligent confinement.... by its very nature has the special likelihood of causing real and severe emotional distress." Id. at 119. The court further explained that [b]y the very fact of confinement, under facts like those set forth here, a person's right to be free from bodily restraint is infringed.

This deprivation of liberty alone, when it causes serious emotional distress, is a wrong sufficiently worthy of redress that the physical injury requirement should not be necessary. When there is a substantial and unwarranted deprivation of liberty, that deprivation itself is a sufficient guarantee that the claim is not frivolous and that "it is more probable that the plaintiff did, in fact, suffer the emotional distress alleged." It is the very nature of confinement that creates the likelihood of emotional injury.

Emotional harm, in the appropriate circumstances, is a reasonably foreseeable consequence of negligent confinement. Id. at 120 (citation omitted). Thus, although the court cited the psychiatric opinion as establishing severe emotional distress, its discussion suggests that wrongful confinement in and of itself is evidence of a com-pensable emotional injury. ¶ 28. We conclude, however, that it is not necessary for us to decide whether Hicks made a sufficient showing to recover damages for emotional distress because, quite simply, the jury was not asked to specify damages for emotional distress.

The special verdict form included only a single, general damages question: "What amount of money, if any, will fairly and reasonably compensate Anthony Hicks for the damages he sustained as a result of his criminal conviction and incarceration?" The relevant instruction provided little additional guidance, save for informing jurors that their answer should not be influenced by sympathy or resentment, nor by the requests made by counsel unless sustained by the evidence. See Wis JI — Civil 1700.

Nunnery objected to neither the question nor the instruction, and he did not request additional instructions regarding the necessity for or a definition of "severe emotional distress." ¶ 29. During closing arguments, Hicks's counsel cited specific dollar figures for Hicks's lost wages while in prison and for the postconviction attorney fees he incurred. Counsel then discussed "the big item of damages," which he characterized as "the emotional impact on Mr.

Hicks of having been wrongfully convicted of a crime . . . and emotional injury to him of having spent almost five years in prison that he didn't deserve." Counsel later referred to "compensation for the humiliation and anguish of being convicted of a crime he never committed." ¶ 30.

Thus, while it is clear that the emotional impact of the consequences suffered by Hicks was a factor in the manner in which the case was tried and argued, we cannot conclude that the general damages verdict, or any identifiable subpart of it, was for "emotional distress," such that a failure to present expert testimony regarding its severity would be fatal to the verdict. The general damages award, based on the evidence and arguments presented to the jury, encompassed out-of-pocket amounts as well as non-economic losses.

With regard to the latter, although some notion of "emotional distress" was undoubtedly a component of what the jury awarded, the jury was asked to compensate Hicks for the injury to his good name and reputation, and for his four-year loss of liberty, which are injuries in their own right without regard to whether they also caused Hicks emotional distress. ¶ 31. In

summary, because the jury was not asked to award damages specifically for emotional distress, and because injuries other than to Hicks's emotional well-being were established and argued to the jury, Nunnery is not entitled to a judgment notwithstanding the jury's verdict for any failure on Hicks's part to prove that he suffered severe emotional distress. Nunnery's arguments on this issue speak as much to his contention that the damages verdict was excessive, a contention we address below. II. ¶ 32. We next address Nunnery's contention that we must reverse because Hicks failed to prove his innocence. Nunnery moved for

summary judgment asserting, among other things, that Hicks was required to prove his innocence in order to prevail on a claim for legal malpractice arising from representation in a criminal matter. The trial court denied the motion, concluding that Hicks "need not necessarily prove that he is innocent in order to prove that, absent [Nunnery's] negligence, he would have won his case (i.e., that he would not have been convicted)." Nunnery renewed the claim in a pretrial motion and again in his post-verdict motion for a new trial.

In denying the new-trial motion, the court again concluded that Wisconsin law "doesn't require that the plaintiff actually prove he was innocent in order to prevail." We disagree. ¶ 33. To prevail in an action for legal malpractice, a plaintiff must prove four elements: (1) a lawyer-client relationship existed; (2) the defendant committed acts or omissions constituting negligence; (3) the attorney's negligence caused the plaintiff injury; and (4) the nature and extent of injury. See Lewandowski v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284 (1979).

The last two elements in a claim for legal malpractice arising out of civil representation most often require the plaintiff to prove a "suit within a suit" by showing that, " 'but for the negligence of the attorney, the client would have been successful in the prosecution or defense'" of the underlying civil action. Id. (citation omitted); Cook v. Continental Cas. Co., 180 Wis. 2d 237, 249-50, 509 N.W.2d 100 (Ct. App. 1993).

The question before us is whether the cause and injury elements for a malpractice claim stemming from legal representation in a criminal case should be defined in the same way as for representation in civil matters, or whether something more is required. ¶ 34. We are mindful that, in Wisconsin, a defendant's negligence need not be the only, or even the primary, cause of a plaintiffs injury in order for the plaintiff to recover damages. Rather, a plaintiff may recover if" 'the defendant's negligence was a substantial factor in producing the injury.'" Morden v.

Continental Ag, 2000 WI 51, ¶ 60, 235 Wis. 2d 325, 611 N.W.2d 659 (citation omitted). The jury's finding that Hicks would have been found not guilty absent Nunnery's negligent representation establishes that Nunnery's negligence was a "cause-in-fact" of Hicks's injuries. That is not the end of the inquiry, however, inasmuch as a court must then explore whether public policy considerations may preclude the imposition of liability. Id.

As we discuss in the paragraphs which follow, we conclude that policy considerations preclude the imposition of liability unless Hicks can establish his innocence of the charges of which he was convicted. ¶ 35. For his contention that Hicks must prove that he was innocent in order to recover on his malpractice claim, Nunnery relies, in part, on the following passage from Harris v. Bowe, 178 Wis. 2d 862, 505 N.W.2d 159 (Ct.

App. 1993): As noted by the supreme court: "To establish causation and injury in a legal malpractice action, the plaintiff is often compelled to prove the equivalent of two cases in a single proceeding. ..This requires a plaintiff to prove that, but for the negligence of the attorney, the plaintiff would have been successful in the lawsuit. In the present case, this means that Harris had to prove that he was innocent of the first degree reckless homicide charge.

Harris, however, voluntarily pleaded guilty to the charge and, therefore, is precluded from satisfying the elements of a legal malpractice action against Bowe. Id. at 868 (citations omitted, emphasis added). ¶ 36. We conclude, however, that the cited language from Harris is not controlling. Earlier in the Harris opinion we concluded that the plaintiff had not established that his defense attorney had been negligent, and it would have been unnecessary for us to go further. See Cook, 180 Wis. 2d at 250 ("If the jury determines that the lawyer fulfilled [the] standard of care, that ends the case.").

Our consideration of whether the plaintiff in Harris could prove the remaining elements of a malpractice claim was thus dicta. Moreover, our focus was not on what the plaintiff in Harris would have had to prove at trial, but on the fact that by "voluntarily plead[ing] guilty to the charge," he was essentially estopped from alleging he was harmed by his attorney's negligence. ¶ 37. Our comments in Harris suggest that a plaintiff who has admitted guilt should not be heard to claim that his attorney should have obtained an acquittal, but that circumstance is not before us.

Hicks has consistently maintained his innocence of the charges of which he was found guilty. The question is whether Hicks was obliged to convince the civil jurors of his innocence, or, as the trial court concluded, merely to show that he would have been found not guilty at the criminal trial. The question has not been directly addressed by a Wisconsin court. ¶ 38. Nunnery cites several cases from other jurisdictions which require proof of innocence in order to prove causation of injury in a legal malpractice action arising in a criminal context. For example, the Massachusetts Supreme Court in Glenn v.

Aiken, 569 N.E.2d 783 (Mass. 1991), noted that "[cjourts have generally required that a former criminal defendant prove his innocence of the crime charged as an element of his claim that his former trial counsel was negligent in defending him." Id. at 785. The court noted the distinctions between malpractice arising from representation in a criminal as opposed to a civil matter: "Not only is there the problem of differing burdens of proof, but public policy considerations also differ." Id. at 788.

Regarding the former,- the court observed that if a plaintiffs only burden is to show that the criminal jury would have acquitted, the defendant attorney is essentially faced with proving "that his former client was guilty beyond a reasonable doubt," instead of persuading a jury by a preponderance of the evidence that the former client would have lost the prior action regardless of any negligent representation, as is the attorney's burden if the "suit within a suit" is a civil action. Id. at 787-88.

On the policy issue, the court noted the commonly expressed view "that a person who has committed a crime should not be entitled to recover from his former defense counsel," which would be tantamount to "rewarding him indirectly for his crime." Id. at 788. ¶ 39. The California Supreme Court, in a thorough and well-reasoned opinion, reached the same result, noting that in "criminal malpractice" cases, "the clear majority of courts that have considered the question also require proof of actual innocence as an additional element." Wiley v. County of San Diego, 966 P.2d 983, 985 (Cal. 1998).

The court discussed at length the public policy considerations for treating differently plaintiffs whose legal malpractice claims arise from representation in a criminal as opposed to a civil context. We briefly summarize some of the policy considerations we find to be persuasive and which inform our disposition of this appeal: ¶ 40. 1. " 'Permitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would. . . shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.'" Id. at 986 (citation omitted). ¶ 41. 2.

Allowing civil recoveries to guilty plaintiffs "impermissibly shifts responsibility for the crime away from the convict." Id. (citation omitted). "Regardless of the attorney's negligence, a guilty defendant's conviction and sentence are the direct consequence of his own perfidy.. . . [Therefore,] [w]hile a conviction predicated on incompetence may be erroneous, it is not unjust." Id. at 987. ¶ 42. 3. " 'Tort law provides damages only for harms to the plaintiffs legally protected interests, and the liberty of a guilty criminal is not one of them.

The guilty criminal may be able to obtain an acquittal if he is skillfully represented, but he has no right to that result (just as he has no right to have the jury nullify the law, though juries sometimes do that)Id. at 990 (citations omitted). ¶ 43. 4.

Even in cases where the causal link between an attorney's negligence and a client's erroneous imprisonment is most obvious (such as where the attorney fails to bring a clearly meritorious motion to suppress evidence that establishes guilt, which the state could not prove without it), civil recovery by a guilty plaintiff is not warranted because of "the nature and function of the constitutional substructure of our criminal justice system." Id. at 987-90.

That is, such features of the criminal justice system as the state's burden to prove guilt beyond a reasonable doubt, the exclusionary rule, and other constitutional protections are to safeguard against conviction of the wrongly accused and to vindicate fundamental values. They are not intended to confer any direct benefit outside the context of the criminal justice system. Thus, defense counsel's negligent failure to utilize them to secure an acquittal or dismissal for a guilty defendant does not give rise to civil liability. Id. at 988-89. ¶ 44. 5.

Unlike victims of legal malpractice in a civil context, who most often have no redress except a recovery from the negligent attorney, wrongfully convicted criminal defendants have the opportunity to rectify the wrong by asserting their Sixth Amendment right to effective assistance of counsel. Id. at 989. "Not only does the Constitution guarantee this right, any lapse can be rectified through an array of postconviction remedies, including appeal and habeas corpus. Such relief is afforded even to those clearly guilty as long as they demonstrate incompetence and resulting prejudice . .. ." Id. ¶ 45.

We find the reasoning of the California Supreme Court, and that of other courts which have reached the same result, persuasive. We cannot say the same of the reasoning of the dissent in Wiley, 966 P.2d at 992-94 (Mosk, J., dissenting), or that of some courts that have concluded the elements of legal malpractice should not differ regardless of whether the malpractice arises in a criminal or civil context. Some do little more than to state the conclusion with no explanation of why the policy considerations that have led many courts to adopt the "actual innocence" requirement are wrong or improper.

See, e.g., Krahn v. Kinney, 538 N.E.2d 1058, 1061 (Ohio 1989). Others discuss the issue only tangentially while addressing statute-of-limitations issues. See Gebhardt v. O'Rourke, 510 N.W.2d 900, 905-07 (Mich. 1994). ¶ 46.

Because we are persuaded that public policy requires a plaintiff in Hicks's position to prove he is innocent of the charges of which he was convicted in order to prevail on a claim of legal malpractice, we conclude that the trial court erred in instructing the jury that Hicks's burden was to prove only that "but for [Nunnery's] negligent acts or omissions, [Hicks] would not have been found guilty of the charges brought against him." Nunnery is thus entitled to a new trial at which Hicks must convince five-sixths of the civil jurors, by a preponderance of the evidence, that he did not commit the offenses of which he was convicted.

See Wiley, 966 P.2d at 991. ¶ 47. This is not a case where an atypical series of events connects a defendant's acts or omissions to a plaintiffs harm, thereby inviting the "case-by-case," six-factor public policy analysis which the dissent concludes we should apply here. See, e.g., Steffen v. Luecht, 2000 WI App 56, ¶ 38, 233 Wis. 2d 475, 608 N.W.2d 713 (noting that four of the six factors "require consideration of the linkage, if any, between the negligent act and the resulting harm").

Thus, we believe that much of the dissent's discussion of "proximate cause" and "foreseeability" is irrelevant to the public policy question presented by the present facts. ¶ 48. We also note that the adoption of a rule precluding the imposition of liability on public policy grounds for an entire class of claims is not inconsistent with Wisconsin tort law. See, e.g., Walker v.

Bignell, 100 Wis. 2d 256, 266-67, 301 N.W.2d 447 (1981) ("[W]e ... declare directly that, as a matter of public policy, municipalities should .not be exposed to common law liability under the circumstances present in this case ['injuries caused by uncut vegetation obscuring motorists' vision at highway intersections']."). Our conclusion here is similar: as a matter of public policy, persons who actually commit the criminal offenses for which they are convicted should not be permitted to recover damages for legal malpractice from their former defense attorneys. ¶ 49.

Finally, we observe that the dissent seemingly acknowledges that the "X factor" upon which, in its view, a judge should decide whether to impose or preclude liability is the probability of the plaintiffs innocence. We are much more comfortable declaring that inquiry to be a factual one, properly delegated to the jury in all cases, rather than being decided by a judge after verdict based on the judge's impression of how guilty or innocent the plaintiff appears to be.

Both prospective plaintiffs and defendants will be in a better position to evaluate a potential criminal malpractice claim if it is clear from the outset that the plaintiff hears the burden of establishing actual innocence as an element of the claim, rather than leaving the outcome in all such cases to depend on "X factors." ¶ 50. We emphasize that the question of a plaintiffs innocence is in addition to, not a substitute for, a jury question regarding whether the plaintiff would have been found not guilty absent the defendant's negligence.

A defendant's negligence must be found to be a cause-in-fact of the plaintiffs harm, and in the present context, this means that the attorney's negligence must still be found to have been a substantial factor contributing to the plaintiffs conviction. Although instances may be rare, it is conceivable that a jury could conclude that a plaintiff did not commit the offense, but that he or she would nonetheless have been convicted even if properly represented at trial.

This could occur, for example, where highly inculpatory evidence is presented to the criminal jury through no fault of defense counsel, and that evidence is thereafter recanted or refuted, leading the malpractice jury to conclude that the plaintiff, although innocent, would have been convicted even if counsel had not committed other, inconsequential errors unrelated to the damning evidence. ¶ 51.

Before addressing Nunnery's remaining claims of error regarding other aspects of the trial and verdict, we must consider whether a new trial on the issue of Hicks's innocence necessitates setting aside any other parts of the verdict. We conclude that it does not. ¶ 52. Both the trial court and this court, when ordering a new trial, are empowered to limit the issues to be retried. Wintersberger v. Pioneer Iron & Metal Co., 6 Wis. 2d 69, 76, 94 N.W.2d 136 (1959) ("The power of the trial and appellate court to limit the issues on retrial is undisputed.").

If a trial court orders a new trial, its decision regarding whether to limit the issues to be retried is discretionary, and we will disturb it only if discretion is erroneously exercised. Kenwood Equip., Inc. v. Aetna Ins. Co., 48 Wis. 2d 472, 485, 180 N.W.2d 750 (1970). However, where a trial court has denied a post-verdict motion for a new trial, as the court did here, we may exercise our independent authority to determine whether tp limit the issues on retrial. Olson v. Milwaukee Auto. Ins. Co., 266 Wis. 106, 117, 62 N.W.2d 549 (1954). ¶ 53.

The supreme court set out in Kenwood the standard for determining whether to limit issues on retrial: The court will generally grant a partial new trial when the error, or reason for the new trial, is confined to one issue which is entirely separable from the others and it is perfectly clear that there is no danger of complication, or where the error in a trial relates only to a certain issue which is in no way dependent for its proper trial on other issues and as to such other issues there was no error.

In order that a partial new trial may be ordered, it must clearly appear that the effect of the error did not extend to all the issues tried; where it appears that the error may have affected all the issues, the conclusion of law follows that there must be a complete new trial, and, where an error, while ostensibly relating to one issue only, is of such a character as to have a prejudicial effect on the others, a full retrial should be had. Although an error affects one issue only, a new trial on all issues should be granted where , this will best subserve the ends of justice.

Kenwood, 48 Wis. 2d at 485-86 (citing 66 C.J.S. New Trial). The supreme court applied this standard in Just v. Misericordia Hospital, 61 Wis. 2d 574, 582-84, 213 N.W.2d 369 (1974), and ordered a limited retrial after concluding the trial court had "abused its discretion." The court noted that "[t]he issue of causation is separable from the issue of damages and we see no danger of' complication, confusion, or prejudice, if the new trial is limited to the issue of liability." Id. at 583. ¶ 54. We reach a similar conclusion here.

The financial and other impacts of Hicks's conviction and imprisonment are separable from the question of whether he committed the charged offenses, and the error in the first trial affects only the latter issue. Unless the award of damages must be set aside for some other reason, a question we consider below, we see no need to retry the damages issue in order to "subserve the ends of justice." Kenwood, 48 Wis. 2d at 486. ¶ 55. We also conclude that the issues of Nunnery's negligence and its contribution to Hicks's conviction are separable from the question of Hicks's innocence.

The questions of whether Nunnery's representation of Hicks fell below professional norms, and if so, whether the negligence was a substantial factor contributing to the guilty verdict, have no logical or direct evidentiary relationship to whether Hicks actually committed the offenses in question. The former questions focus on what Nunnery did or did not do at or before the trial in December 1991, while the latter relates exclusively to what Hicks did or did not do on November 15, 1990. ¶ 56. Accordingly, retrial is limited to the issue of whether Hicks committed the offenses of which he was convicted.

HH I — I HH ¶ 57. Nunnery next claims that the trial court erred in denying his motion to change a verdict answer or to direct a verdict in his favor. Specifically, he challenges the jury's finding that Hicks would not have been found guilty absent Nunnery's negligence.

A motion for a directed verdict and one to change the jury's answer to a verdict question both challenge the sufficiency of the evidence, and neither may be granted "unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party." Wis. Stat. § 805.14(1). ¶ 58. The foregoing standard applies to both the trial court's consideration of the motion and to this court's review on appeal.

Thus, Nunnery faces the heavy burden of convincing us that there is "no credible evidence" to support the jury's finding. Weiss v. United Fire and Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995). Our duty is to search the record to find precisely such evidence, accepting all reasonable inferences drawn by the jury. Heideman v. American Family Ins. Group, 163 Wis. 2d 847, 863-64, 473 N.W.2d 14 (Ct. App. 1991).

And, if we find credible evidence to support the verdict, the fact that it may arguably be " 'contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict... must stand.'" Weiss, 197 Wis. 2d at 390 (citation omitted). ¶ 59. Nunnery contends that Hicks failed to prove that there was a causal relationship between Nunnery's failure to obtain DNA testing of the hair evidence and Hicks’s conviction.

He claims that Hicks was "obligated to show to a reasonable certainty that he would have had access to [DNA] testing" and "[t]here is simply no evidence in the record that [an expert] would have actually performed ... DNA testing on the evidence in the Hicks criminal case." We conclude, however, that there was credible evidence in the record from which the jury could have found that the testing that was obtained postconviction was available to Nunnery and Hicks prior to the criminal trial.

In an affidavit which was introduced into evidence at the malpractice trial, Nunnery admitted: (1) that he learned prior to Hicks's criminal trial that DNA testing of the hair evidence in Hicks's case could be conducted through out-of-state laboratories; (2) that he failed to have DNA testing of the root tissue of the hair samples done prior to trial; (3) that he failed to request a continuance so that he could obtain the testing; and (4) that he failed to discuss the possibilities of such testing with Hicks. ¶ 60. Dr.

Word of Cellmark testified that the DNA testing was "widely known" in the scientific community prior to Hicks's criminal trial. She said that, had she been contacted by a defense attorney prior to Hicks's trial in 1991 and asked whether such testing was being done in the country for forensic purposes, she had knowledge that a laboratory in California was performing such testing at the time using a commercially available kit: We knew that Dr.

Edward Blake, of Forensic Science Associates in Richmond, California was doing PCR testing using initially a precursor of the DQ Alpha kit and then the commercially available kit. ... [I]t was generally known in our laboratory, since we had people that knew Ed Blake, that he was doing PCR testing. He had been actively involved in it for a number of years.

He had actually testified in the first case using DQ Alpha testing I believe in either '85 or '86 in the state of Pennsylvania and had been involved in several other high profile cases, one of which being the Gary Dotson case from Illinois, which was the first case wherein post-conviction testing was done of DNA and demonstrated that he was excluded as the individual who had committed what was alleged to be a crime at the time. ¶ 61. We thus reject Nunnery's suggestion that it was incumbent on Hicks to produce Dr.

Blake to testify that he would have performed the testing in 1991 and would have testified at the criminal trial with regard to the DNA result excluding Hicks. Dr. Word's testimony regarding the availability of such testing, together with Nunnery's acknowledgement of his awareness of it, constitute credible evidence from which the jury could reasonably infer that the testing could have been obtained and introduced as evidence at the criminal trial. ¶ 62.

Nunnery next argues that because the DNA test results do not positively exclude Hicks as the source of the hairs, Nunnery's failure to procure the testing prior to the criminal trial was not a cause of the criminal jury's guilty verdict. Nunnery labels Dr. Word's testimony that Hicks was excluded as the source of one of the hairs as "qualified" because her conclusion rested on the assumption that the hair came from a single source. We thus review Dr. Word's testimony in more detail. ¶ 63. She testified that all people have two "DQ Alpha types." The victim's DQ Alpha types are 1.1 and 2. Hicks's are 1.2 and 4.

The DQ Alpha types of hair sample number 013 were 1.1 and 4. Thus, Hicks was excluded as the donor of this hair sample if its DNA came from a single source. Word testified that, in her opinion, to a reasonable degree of scientific certainty, the DNA in this sample did come from a single source. When questioned further, she explained that DNA was only found on the root tissue of the hair and not the shaft.

Since "genetically we can only have one person be the source of a hair" and the "hair root would be the DNA from the individual that that hair came from," Word was able to conclude that the hair was from a single source, and, given the DQ Alpha types, that person was not Hicks. ¶ 64. We thus reject Nunnery's suggestion that the "assumption" on which it was based somehow renders incredible the expert testimony that Hicks was excluded as the donor of the hair sample.

To the extent the expert's opinion was "qualified," if it was that, it was a factor for the jury to consider in assessing the weight and credibility of the expert's testimony, and not a basis for a directed verdict in Nunnery's favor. See Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979) ("The credibility of witnesses and the weight given to their testimony are left to the judgment of the jury. . ."). ¶ 65.

Nunnery also asserts that "the presence of a hair from someone other than Hicks does not prove Hicks was never in [the victim's] apartment." While this may be true, and the jury could have reached that conclusion, "where more than one reasonable inference can be drawn from the evidence, [we] must accept the inference drawn by the jury." Id. The victim testified at the criminal trial that, prior to the sexual assault, no other black person had been in her apartment, aside from a woman who had been there briefly two years earlier.

An attorney who represented Hicks in postcon-viction proceedings testified at the malpractice trial that the State's case "depended incredibly upon the hairs" and that testing of the hairs would have been "extraordinarily important" as it had the potential of eliminating Hicks as the source of the hairs. We conclude that the DNA evidence excluding Hicks as a source of the hair provided substantial evidence from which the jury in the malpractice case could reasonably infer that Hicks would not have been convicted had the evidence been introduced at Hicks's criminal trial. ¶ 66.

Finally, Nunnery claims that the absence of testimony from a possible alibi witness, Tracy Connor, at the malpractice trial "is a fatal failure of proof' regarding whether Nunnery's failure to procure Connor as a witness contributed to Hicks's conviction. Nunnery argues further that even if Connor had testified at the malpractice trial, his testimony would not have established a complete alibi for Hicks, and thus would have been insufficient to establish causation of harm. However, the jury was not required to find causation with respect to both aspects of Nunnery's alleged negligence.

Because we conclude that the record contains sufficient evidence to support a finding that Nunnery's failure to obtain DNA testing of the hair samples was a substantial factor in producing a guilty verdict against Hicks, the jury's "yes" answer on causation must stand. We need not decide, therefore, whether Nunnery's failure to procure Connor's testimony also contributed to the criminal jury's guilty verdict. IV ¶ 67. Nunnery concludes his appeal with a series of arguments claiming his entitlement to a new trial, but none persuades us to grant one on the cited grounds.

He first claims that the verdict is "perverse," but the basis for this claim is essentially that the damages award was excessive, which is the second basis he alleges warrants a new trial. We reject both claims. The trial court refused to reduce the damages awarded or to order a new trial because of an excessive award, and it was in a better position than we to evaluate the award and the evidence supporting it.

The supreme court has explained the standard for our review: Where in response to motions after verdict a trial court fully reviews the evidence as to damages and concludes that the award is or is not excessive, the sole question on appellate review is whether this determination was an abuse of discretion. On review this court must, like the trial court, view the evidence in the light most favorable to the plaintiff.

Where the trial court's analysis of the evidence upon which it approves or rejects a jury's damage award is complete, the reviewing court need not review the entire record as a matter of first impression and ascertain whether, in its judgment, the verdict is excessive. Instead, this court will review the evidence only to the extent necessary to determine whether the trial court abused its discretion. Koele v. Radue, 81 Wis. 2d 583, 587, 260 N.W.2d 766 (1978) (footnotes omitted). ¶ 68.

The trial court's ruling denying Nunnery's challenge to the damage award included the following comments: That brings us to the damage question, and this, in my opinion, is the hardest question of all. The questions are does the award of $2.6 million reflect a rate of compensation that's beyond reason and does it shock the conscience by its lack of any relationship to the evidence established at trial. Frankly, I'm shocked, and I don't know whether I can separate whether I'm shocked as a person or shocked as a judge.

I have to tell you I've been shocked for quite some time over the seemingly outrageous rates of compensation that various people in this society earn.... The law is clear. Just because I disagree with a verdict, that doesn't give me the authority to modify it. The verdict that was returned here, again regardless of whether or not I agree with it, it does have some relationship to the evidence at trial.... Now, the burden that's placed upon the circuit court when considering whether or not a claim is an excessive verdict is substantial.

Excessiveness alone is not sufficient to label a verdict perverse, and I have searched the record for a reasonable basis to support the damage award. The record establishes that the plaintiff was convicted of the sexual assault. He was imprisoned for four-and-a-half years. He feared being assaulted in prison although he never was. He worried about his family. He suffered no physical injuries. He offered no medical or psychiatric or psychological testimony to support the damages, and he offered no testimony from his wife or his children, his father, or friends to support the damages.

Significantly the testimony from his mother dealt with the damage issue as much as the — that is the wage loss as much as anything else. The plaintiff also testified that after his release, he's enjoyed a stable family life and successful employment. Certainly the evidence as to damages is imprecise, and an award of $2.6 million is, in all likelihood, higher than I would have awarded. However, the plaintiff has suffered by his imprisonment. It was four-and-a-half years, and strange as it may sound, that's temporary. He was temporarily imprisoned. There's no testimony in this record as to permanency.

This was, all in all, a serious deprivation that was suffered by the plaintiff, and obviously it should be compensated, and that compensation should reflect upon the reality of the plaintiffs life before, during, and after incarceration. If I'm to upset this award of damages, I have to find either that they're so excessive as to indicate that they resulted from passion, prejudice, or a corruption — I can't do that — or I have to find that the jury disregarded the evidence or the applicable rules of law. I can't find that the jury disregarded the evidence or any applicable rules of law.

I can't find that there was erroneous jury instructions given as to the proper measure of damages. This is just not the case, and I have, believe me, I have dwelt long and hard .... ¶ 69. We conclude the trial court did not erroneously exercise its discretion in refusing to grant Nunnery relief from the damages award. While the size of the verdict gives us pause, just as it did the trial court, we, like that court, may not substitute our judgment for that of the jury.

We conclude that there is credible evidence to support the award, and that the trial court's analysis of the record was "complete." See Koele, 81 Wis. 2d at 587. ¶ 70. Nunnery's next basis for requesting a new trial is that, even if there was "credible evidence" to support the jury's answer on the causation question, the "yes" answer was still contrary to the great weight of the evidence. This claim of error involves the same evidence we have already reviewed, but a different balance point for our review applies.

We nonetheless conclude that the jury's finding that Hicks would not have been found guilty absent Nunnery's negligence in failing to obtain DNA testing was not greatly outweighed by evidence to the contrary. The trial court therefore did not err in denying Nunnery a new trial on this ground. ¶ 71. Next, Nunnery cites what he claims were two "prejudicial errors" which require the entire case to be retried. The first is that the trial court admitted Nunnery's "mea culpa" affidavit from Hicks's postcon-viction ineffective assistance of counsel proceedings as evidence during the malpractice trial.

Nunnery claims this was error because, "[t]o promote full representation of the client in the underlying criminal action and the cooperation of the attorney in that representation, good public policy and Wis. Stat. § 904.03 dictate that admissions made by an attorney as to the attorney's errors be excluded from any subsequent malpractice proceeding." Nunnery further alleges that "allowing the use of such admissions would have a chilling effect on criminal defense counsel, seriously inhibiting the vigorous representation of their clients post-trial." We disagree. ¶ 72.

We first note that when a former client files a claim of ineffective assistance of counsel, the allegedly deficient attorney is relieved of his or her obligation of confidentiality regarding past attorney-client communications, "to the extent the lawyer reasonably believes necessary ... to respond to allegations ... concerning the lawyer's representation of the client." SCR 20:1.6(c)(2) (2002); State v. Flores, 170 Wis. 2d 272, 277-78, 488 N.W.2d 116 (Ct. App. 1992).

All attorneys, moreover, are obligated to testify truthfully at all times, see SCR 20:3.3(a)(1) (2002), including when they are confronted with allegations of ineffective assistance of counsel. We therefore question Nunnery's premise that an attorney when facing a former client's allegations of ineffective assistance of counsel remains under a duty to "vigorously represent" the former client. Rather, the attorney's duty is to testify truthfully regarding his or her representation of the former client, so that the criminal court can properly evaluate the defendant's Sixth Amendment claim. ¶ 73.

Accordingly, we see no reason why testimony an attorney might give during postconviction proceedings should be inadmissible in a subsequent malpractice trial. As we have discussed, the attorney is obligated to speak the truth in both proceedings, regardless of whether the testimony in the former may ultimately be against the attorney's interests in the latter. On balance, we conclude that the better public policy is to treat attorneys no differently than other witnesses whose sworn statements may later be introduced as admissions against them. ¶ 74.

Nunnery also complains of a trial court ruling that prevented him from introducing certain testimony given by Tracy Connor during the criminal postconviction proceedings. Nunnery claims the testimony, although hearsay, was admissible under Wis. Stat. § 908.03(24), and that it would have assisted him in impeaching Hicks's trial testimony regarding Hicks's whereabouts on the day of the offenses. We have reviewed the trial court's ruling on this issue, and it does not appear that Nunnery sought admission on the basis of "comparable circumstantial guarantees of trustworthiness," the basis he now cites.

Moreover, we conclude that the value of the evidence for impeachment purposes was minimal, in that the discrepancy dealt with where Connor and Hicks had intended to meet, a discrepancy that was previously established through other testimony. We conclude that the court's ruling, even if erroneous, did not affect any "substantial right" of Nunnery's. See Wis. Stat. § 901.03(1). ¶ 75. Finally, Nunnery asks us to reverse and grant a new trial in the "interests of justice." His cursory argument in support of this request simply refers to his prior claims of error. We have rejected those claims, save one.

Except for the need to try the issue of Hicks's actual innocence, we find the jury's verdict sustainable. We find no basis in the record to grant a new trial in the interests of justice. CONCLUSION ¶ 76. For the reasons discussed, we reverse the appealed judgment and remand for a trial at which Hicks must establish that he did not commit the offenses of which he was convicted. If the jury finds by a preponderance of the evidence that Hicks did not commit the offenses, the judgment in Hicks's favor shall be reinstated. By the Court. — Judgment reversed and cause remanded with directions.

We employ the terminology regarding the hair evidence used by witnesses during Hicks's criminal trial and postconviction proceedings, just as we and the supreme court did in the previous decisions reviewing Hicks's conviction. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Wisconsin Stat. § 893.54 provides: "The following actions shall he commenced within 3 years or be barred:

(1) An action to recover damages for injuries to the person.

(2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another." Wisconsin Stat. § 893.53 provides: "An action to recover damages for an injury to the character or rights of another, not arising on contract, shall be commenced within 6 years after the cause of action accrues, except where a different period is expressly prescribed, or be barred." In holding that a single characterization should apply to all 42 U.S.C. § 1983 claims for limitations purposes, the Supreme Court in Wilson v.

Garcia, 471 U.S. 261 (1985) stated: If the choice of the statute of limitations were to depend upon the particular facts or the precise legal theory of each claim, counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim. Moreover, under such an approach different statutes of limitations would be applied to the various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case. Id. at 273-74 (footnotes omitted). Given our conclusion that Wis.

Stat. § 893.53 applies to this action, we need not address Hicks's argument that even if the three-year statute of limitations applied, his action would not be barred because the period does not begin to run until his conviction was overturned. See, e.g., Shaw v. State, 816 P.2d 1358, 1362 (Alaska 1991) ("[W]e conclude that the statute of limitations on legal malpractice actions arising out of criminal proceedings does not begin to run until after the post-conviction relief has been obtained."). See, e.g., Wis JI — Civil 1510, 1770.

The verdict asked jurors to answer the following question: "Would Anthony Hicks have been found not guilty absent the negligence of the defendant?" The court instructed the jury that it was Hicks's burden to prove that "but for the negligent acts or omissions" on Nunnery's part, Hicks "would not have been found guilty of the charges brought against him." The U.S. Court of Appeals for the Seventh Circuit has concluded, relying on our comment in Harris v. Bowe, 178 Wis. 2d 862, 505 N.W.2d 159 (Ct.

App. 1993), that Wisconsin has adopted the general rule requiring a former criminal defendant to prove innocence in order to recover on a legal malpractice claim. Saecker v. Thorie, 234 F.3d 1010, 1013-14 (7th Cir. 2000). The presenting issue in Saecker, however, involved the possible tolling of Wisconsin's six-year statute of limitations for legal malpractice, not the elements of proof of a claim for legal malpractice in a criminal context.

The court's mention of a proof of innocence requirement when discussing what Wisconsin courts "might hold" with regard to the statute-of-limitations issue was thus no more dispositive in Saecker than it was in Harris. See also, Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y. 1987) ("[C]riminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions.

These aspects of criminal proceedings make criminal malpractice cases unique, and policy considerations require different pleading and substantive rules."). The precise issue in Krahn v. Kinney, 538 N.E.2d 1058 (Ohio 1989), was whether the plaintiff needed to first obtain a reversal of a criminal conviction on the grounds of ineffective assistance of counsel before bringing a malpractice action against her former defense counsel. Id. at 1061.

Such a requirement, sometimes labeled an "exoneration" requirement, generally involves obtaining a reversal of an erroneous criminal conviction, followed by either an acquittal or the state's dropping of charges, as a prerequisite for either filing or proving a valid legal malpractice claim arising from criminal representation. See, e.g., Gibson v. Trant, 58 S.W.3d 103, 108-16 (Tenn. 2001).

Because Hicks obtained "exoneration" in the criminal courts before filing his malpractice claim against Nunnery, it is not necessary for us to decide whether that was a precondition to either the filing of his action or his ultimate recovery of damages from Nunnery. Whether exoneration (see note 11, above) is required before suit is commenced may impact the application of the statute of limitations. See Gebhardt v. O'Rourke, 510 N.W.2d 900, 905-07 (Mich. 1994).

As we have discussed, because Hicks commenced his action within six years of his conviction, we need not decide whether the cause of action did not accrue until Hicks obtained a reversal of the conviction. Although his post-verdict motion in the circuit court regarding the "actual innocence" issue sought only a new trial on that ground, Nunnery contends on appeal that the record demonstrates conclusively that Hicks "cannot prove he is innocent." We disagree.

Given the circuit court's pretrial ruling that Hicks need prove only that he would not have been found guilty, and its instructions to that effect, the "real controversy" of whether Hicks committed the offenses was not tried. We do not underestimate the difficulty facing a plaintiff in Hicks's position of attempting to "prove a negative." Nonetheless, for the reasons we have discussed, we conclude that it is his burden to do so in order to recover damages from Nunnery, and further that he should be given the opportunity to convince a properly instructed jury of his innocence.

This conclusion would be similar to a court concluding, on a postconviction claim of ineffective assistance of counsel, that defense counsel had performed deficiently but that the deficient performance did not prejudice the defendant. See Strickland v. Washington, 466 U.S. 668, 693-94 (1984). The court instructed the jury as follows: The plaintiff must show causation as to either act that Attorney-Nunnery allegedly did or failed to do.

Specifically, as to the claim that Attorney Nunnery negligently failed to obtain hair root tissue DNA testing on the hair evidence found at the crime scene, the plaintiff must show that, but for Attorney Nunnery's failure to obtain that evidence, the plaintiff would not have been found guilty of the charges brought against him, or as to the claim that Attorney Nunnery negligently failed to obtain the testimony of Tracy Connor, the plaintiff must show that, but for Attorney Nunnery's failure to obtain that evidence, the plaintiff would not have been found guilty of the charge[s] against him, or plaintiff must show that but for the combination of these failures the plaintiff would have been found not guilty of the charges against him.

We note that Nunnery apparently continued to serve as co-counsel for Hicks during postconviction proceedings, not.withstanding the fact that Hicks was pursuing relief on the grounds of Nunnery's ineffective assistance at trial. We believe that continued representation under these circumstances is rare, and in the vast majority of cases where ineffective assistance of counsel is alleged, the allegedly deficient attorney no longer represents the defendant. We are aware of concerns expressed in some quarters that are the exact opposite of the policy arguments Nunnery advances here.

According to some, criminal defense attorneys will too often readily admit to deficiencies in their representation during postconviction proceedings, perhaps out of regret over a less than desirable outcome or a sense of continuing loyalty to their former clients. We do not necessarily share this concern, but note only that it exists.