Friday, November 12, 2010

Differing Results Precludes Summary Judgment

The Oregon Court of Appeals reversed the grant of summary judgment in a legal malpractice case.

In the underlying criminal matter, the plaintiff had lost his post-conviction ineffective assistance of counsel claims. He then prevailed in federal court.

The court here found that the inconsistent results precluded summary judgment:

In this case, the existence of inconsistent decisions on the issue of the adequacy of the representation provided to plaintiff by defendant is clear.  In the post-conviction proceeding, the trial court determined that defendant afforded plaintiff effective assistance, and we affirmed that decision.  The federal court reached the opposite conclusion.  We conclude that it would be fundamentally unfair to preclude plaintiff from litigating the issue of defendant's negligence.  The proper result, and one consonant with the remedial policies of Oregon malpractice law, is that issue preclusion is inapposite in these circumstances.  Just as a judgment in favor of a post-conviction petitioner does not give rise to offensive issue preclusion against a defendant attorney, see Stevens, 161 Or App at 456, so too, a judgment in favor of a defendant attorney in a post-conviction proceeding does not give rise to defensive issue preclusion when there is a later, inconsistent judgment in a federal habeas corpus case that counsel's performance was constitutionally inadequate.

(Mike Frisch)

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