The Michigan Supreme Court addressed an interesting issue related to the constitutional right to the effective assistance of counsel in the case of People v Trakhtenberg. This case was released by the Court on December 21, 2012. An understanding of this case and its implications requires some explanation of the concept of collateral estoppel. Collateral estoppel, also called issue preclusion. The general rule is that once an issue is litigated, it cannot be raised again by the same party in a different lawsuit.
This has traditionally created a problem for criminal defendants who find themselves convicted of crimes and believe that their attorney was the problem. Normally, a criminal defendant will raise the issue of ineffective assistance of counsel immediately after being convicted. Unfortunately, many defendants don’t get the relief they are looking for from the Court of Appeals because the appellate courts will overlook anything that looks like an attorneys trial strategy.
The same facts that lead to a claim of ineffective assistance in a criminal case would usually support a civil suit for legal malpractice in a lawsuit seeking to recover money damages. However, once the appellate court rules in the criminal appeal that trial counsel was not ineffective, the trial court in the civil suit will grant a motion for summary disposition (dismissal) based on the doctrine of collateral estoppel.
Defendant did not wait for the outcome of the criminal appeal
What is interesting about Trakhtenberg is that the defendant did not wait for the outcome of the criminal appeal but filed his civil suit for legal malpractice. This lawsuit was dismissed by the trial court when it granted a motion for summary disposition. Meanwhile, in the criminal case, an evidentiary hearing was held and the trial court ruled that counsel was ineffective and ordered a new trial. This set up the perfect storm of appellate issues. The trial court in the civil case ruled that counsel had not committed malpractice and the trial court in the criminal case ruled that counsel had been ineffective. The Oakland County Prosecutor appealed the ruling in the criminal case to the Court of Appeals. That court reversed the ruling of the Oakland County Circuit Court, by ruling in part that the civil case ruling trumped the criminal court’s ruling using the doctrine of collateral estoppel.
Normally, the issue of collateral estoppel is raised by an insurance defense attorney representing the attorney being sued. This is usually a perfect defense because the criminal case issue of ineffective assistance has been settled on appeal. Here, the prosecution raised the issue in an attempt to avoid the ruling of the criminal court that counsel had provided sub-standard representation. If this would have succeeded, it would have created the situation where it would be necessary to delay bringing a civil lawsuit out of concern that a loss in that lawsuit would strip the defendant of his ability to appeal.
Fortunately, the Michigan Supreme Court saw through this. The Court ruled that the civil case could not be used to trump the right to appeal a criminal conviction. This case does not change the fact that the best defense to a legal malpractice case is a ruling in the criminal case that counsel was not ineffective. In that case, collateral estoppel will star bar the civil claim and prevent the case from ever going to trial. In some instances, this should be taken into account by the attorney handling the criminal appeal. A competent criminal appeal attorney can help evaluate the value to the appeal of raising the issue of ineffective assistance.
If you need assistance evaluating a criminal appeal, The Kronzek Firm PLC attorneys are available to help you.