Kramer v. Dirksen
Annotate this Case
THIRD DIVISION
May 20, 1998
No. 1-97-1977
WILLIAM KRAMER,
Plaintiff-Appellant,
v.
LAWRENCE DIRKSEN,
Defendant-Appellee. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 96 L 9840
Honorable
James Heyda,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
Plaintiff William Kramer appeals the dismissal of his legal
malpractice action against defendant Lawrence Dirksen, his attorney
in a criminal case in which Kramer was convicted. The issue we
address is whether a criminal defendant who has been found guilty
is estopped from suing his lawyer for malpractice. The trial court
so found and dismissed the malpractice action. We affirm.
In June 1993, plaintiff and Seth Dahm were in a speeding car
that crashed. Dahm was killed. Plaintiff was later tried and
convicted of reckless homicide. See People v. Kramer, 278 Ill.
App. 3d 963, 664 N.E.2d 126 (1996). Plaintiff moved for a new
trial, arguing that he was denied effective assistance of counsel.
The motion was denied. The appellate court affirmed plaintiff's
conviction, finding that defense counsel's representation was not
ineffective and that, even if it were, plaintiff was not prejudiced
by defense counsel's conduct.
Plaintiff then sued his defense counsel, Lawrence Dirksen, for
legal malpractice. Plaintiff alleges that he was "not guilty" of
reckless homicide. He claims he was the passenger in the car and
that Dahm was the driver. Plaintiff further alleges that defendant
negligently failed to impeach a witness. Defendant knew that one
of the witnesses who identified plaintiff as the driver had earlier
said he could not actually see who was driving the car. Plaintiff
also claims that defendant negligently refused to call an expert
hired by plaintiff's family. The expert would have testified that
the eyewitnesses could not have identified plaintiff as the driver.
Plaintiff contends that as a result of defendant's negligence, he
was convicted.
Defendant moved to dismiss plaintiff's complaint under
sections 2-619(a)(4) and (a)(9) of the Code of Civil Procedure.
735 ILCS 5/2-619(a)(4), (a)(9) (West 1996). Defendant argued that
plaintiff's cause of action was collaterally estopped because the
issues of plaintiff's guilt, defendant's ineffective assistance
(and so malpractice), and the proximate cause of plaintiff's
conviction were decided in People v. Kramer, 278 Ill. App. 3d 963.
The trial court granted defendant's motion.
Plaintiff first raises a procedural argument on appeal that
the trial court "improperly treated defendant's motion to dismiss
*** like a motion for summary judgment." Plaintiff notes that,
under a section 2-619 motion to dismiss, all well-pleaded facts in
the complaint and reasonable inferences drawn from them are taken
as true. See Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85, 651 N.E.2d 1132 (1995). But plaintiff's reading of
the scope of a section 2-619 motion is too narrow. Plaintiff
contends that the court erred by relying on facts decided in the
criminal case and reviewed in People v. Kramer, 278 Ill. App. 3d
963. But the court did not "rely" on the facts in People v.
Kramer. Under section 2-619(a)(4), the court relied on the finding
of guilty and resulting judgment that effectively "froze" the facts
that control this case. If plaintiff is estopped by a prior
judgment from alleging certain facts in his complaint, those facts
are not "well-pleaded" and need not be presumed to be true. Cf.
Nagy v. Beckley, 218 Ill. App. 3d 875, 883, 578 N.E.2d 1134 (1991).
We take judicial notice of the Kramer criminal case, not because it
disposed of "evidence" that refutes plaintiff's allegations, but
because it is a judgment that precludes certain allegations in
subsequent litigation. The motion to dismiss under section 2-
619(a)(4) was properly brought and ruled on.
We next address whether plaintiff's malpractice suit was
properly dismissed. We review a trial court's dismissal under
section 2-619 of the Code of Civil Procedure de novo. Kedzie &
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).
The elements of legal malpractice are: (1) the existence of an
attorney/client relationship which establishes a duty on the part
of the attorney; (2) breach of that duty; (3) proximate cause; and
(4) damages. Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96
(1982). In a usual legal malpractice case, a plaintiff must prove
that he would have successfully prosecuted or defended the
underlying suit if the defendant had not been negligent. Ignarski
v. Norbut, 271 Ill. App. 3d 522, 525-26, 648 N.E.2d 285 (1995). A
plaintiff who was a defendant in a civil case could recover for his
attorney's malpractice if the plaintiff showed that absent
defendant's malpractice, he would have escaped liability. See
Bucci v. Rustin, 227 Ill. App. 3d 779, 784-85, 592 N.E.2d 297
(1992). If we apply that standard here, plaintiff would be allowed
to recover if he proved that absent defendant's malpractice, he
would have been acquitted. But we agree with defendant that policy
reasons require a different analysis in a criminal case.
The majority of states require an additional element in legal
malpractice cases where the underlying case is criminal. It is
possible that a plaintiff who has been found guilty of a crime
would profit from his criminal activity. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). To avoid this result, most states
require a legal malpractice plaintiff to prove, not that he would
have been acquitted but for the attorney's negligence, but that he
is innocent of the crime charged. See, e.g., Glenn v. Aiken, 409
Mass. 699, 702, 569 N.E.2d 783, 785-86 (1991); Carmel v. Lunney,
70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607
(1987); State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo.
App. 1985); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).
In Levine, the seventh circuit concluded that Illinois courts
would follow the majority and elaborated on the burden faced by a
legal malpractice plaintiff who sues his criminal lawyer. Levine,
123 F.3d at 582. See also Walker v. Kruse, 484 F.2d 802 (7th Cir.
1973). The court reasoned:
"Tort law provides damages only for harms to the
plaintiff's legally protected interests, Restatement
(Second) of Torts, 1 comment d, 7(1) (1965), 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 ***, and the law provides no relief if the 'right'
is denied him." Levine, 123 F.2d at 582.
The court held that a plaintiff suing his former criminal defense
counsel must prove his own innocence and that a plaintiff was
precluded from doing so if his conviction has not been overturned.
Levine, 123 F.3d at 583.
The policy reasons for requiring a plaintiff to prove his
innocence discussed in Levine and relied on by other states are
persuasive. We agree that under Illinois law a plaintiff must
prove his innocence before he may recover for his criminal defense
attorney's malpractice.
We next address the second holding in Levine that, if a
plaintiff's conviction is not overturned, he is barred by the
doctrine of collateral estoppel from presenting evidence to prove
his innocence. See Levine, 123 F.3d at 583, citing Appley v. West,
832 F.2d 1021, 1025-26 (7th Cir. 1987); Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988); Restatement (Second) of Judgments,
85(2)(a), and Comment E (1982).
Collateral estoppel precludes a party from relitigating issues
decided in an earlier proceeding. Herzog v. Lexington Township,
167 Ill. 2d 288, 657 N.E.2d 926 (1995). Defensive use of
collateral estoppel occurs when a defendant seeks to prevent a
plaintiff from asserting a claim the plaintiff previously litigated
and lost. In re Owens, 125 Ill. 2d 390, 397, 532 N.E.2d 248
(1988). To invoke the doctrine of collateral estoppel, a defendant
must show that: (1) the issue decided in an earlier adjudication is
the same as the issue raised in the current case; (2) there was a
final judgment on the merits in the earlier case; and (3) the party
against whom estoppel is asserted was a party or in privity with a
party in the earlier case. Illinois State Chamber of Commerce v.
Pollution Control Board, 78 Ill. 2d 1, 7, 398 N.E.2d 29 (1979).
Although under Illinois law there are some circumstances
under which a plaintiff may relitigate issues previously decided by
a criminal trial court (see Talarico v. Dunlap, 177 Ill. 2d 185,
685 N.E.2d 325 (1997)), collateral estoppel bars plaintiff's suit
here.
In Talarico, our supreme court noted that "[i]t is generally
accepted that a criminal conviction collaterally estops a defendant
from contesting in a subsequent civil proceeding the facts
established and the issues decided in the criminal proceeding."
177 Ill. 2d at 193, citing 50 C.J.S. Judgments 922 (1997).
Talarico involved an exception to this general principle--an
exception not applicable here. Our supreme court held that the
plaintiff was not estopped from alleging that medication prescribed
by a doctor caused his criminal behavior even though plaintiff pled
guilty and admitted that his criminal conduct was knowing and
intentional. The court considered that the plaintiff's acceptance
of the plea bargain would result in a significant reduction in the
charges and sentence. The court also noted that the plaintiff was
motivated by the desire to finish medical school, which he could
not do if sentenced to prison. The court concluded that the
plaintiff lacked an "incentive to litigate" the issue before the
criminal trial court.
Plaintiff here had no similar lack of incentive to litigate.
Unlike the plaintiff in Talarico, plaintiff did not accept a plea
bargain. Nor has plaintiff otherwise shown how applying the
doctrine of collateral estoppel would be unfair. Plaintiff fully
litigated the issues of his guilt, whether he had effective
assistance of counsel, and whether he was prejudiced by his
attorney's actions.
Plaintiff suggests, however, that it would be unjust to
preclude him from litigating the issue of his innocence where his
guilty verdict may have been caused by defendant's malpractice.
But not only was plaintiff's guilt litigated in the earlier
criminal action, so were the issues of whether plaintiff's counsel
was effective and whether plaintiff was prejudiced by his counsel's
actions. We believe those states that have found that the issue of
"ineffective assistance of counsel" is the equivalent of negligence
and causation in a plaintiff's malpractice case, for purposes of
collateral estoppel, are persuasively reasoned. See Zeidwig v.
Ward, 548 So. 2d 209, 214 (Fla. 1989); Knoblauch v. Kenyon, 163
Mich. App. 712, 415 N.W.2d 286 (1987). In a legal malpractice
case, a plaintiff must prove that the attorney failed to exercise
a reasonable degree of care and skill in the performance of his
professional duties. See Smiley v. Manchester Insurance &
Indemnity Co., 71 Ill. 2d 306, 313, 375 N.E.2d 118 (1978). A
plaintiff must also show that the defendant's negligence caused the
adverse outcome in litigation. Ignarski, 271 Ill. App. 3d at 525.
To prove "ineffective assistance of counsel," a criminal defendant
must show that his attorney's performance fell "below an objective
standard of reasonableness under 'prevailing professional norms'"
and that defense counsel's performance "'so prejudiced the defense
as to deny the defendant a fair trial.'" People v. Perez, 148 Ill. 2d 168, 186, 592 N.E.2d 984 (1992), quoting Srickland v.
Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), and People v. Franklin, 135 Ill. 2d 78, 116-17,
552 N.E.2d 743 (1990). These standards require a criminal
defendant and legal malpractice plaintiff to prove the same
elements of a defense counsel's conduct. The standards differ only
in the way they have been articulated. They are the same for
purposes of collateral estoppel. See Ziedwig, 548 So. 2d at 214.
Put another way, an essential element of negligence and ineffective
assistance of counsel under the second prong of Strickland is
proximate cause. The finding in People v. Kramer that defense
counsel was not ineffective, and that even if he were, plaintiff
was not prejudiced, established that defendant's representation was
not a proximate cause of plaintiff's conviction
Plaintiff argues that the issue of whether his defense counsel
was negligent was not "fully litigated" because he did not have the
benefit of discovery during the criminal proceedings. Plaintiff
cites no authority for the proposition that an issue cannot be
fully litigated absent discovery. If we were to hold that
discovery is required before an issue is "fully litigated," we
would be contravening our supreme court's recognition of the
general rule that criminal judgments may have preclusive effect in
later civil suits. An issue has been fully litigated if it was
treated seriously when first litigated. See Talarico, 177 Ill. 2d
at 196. The issue of defendant's effectiveness was treated
seriously during the criminal proceedings. Plaintiff made an offer
of proof attempting to show that defendant failed to impeach a
witness and refused to call an expert witness. The matter was
fully argued before the trial court and on appeal. When the
appellate court concluded that plaintiff was not prejudiced, even
assuming ineffectiveness on the part of counsel, the court was
saying that, given the evidence in the State's case, defendant was
proven guilty beyond a reasonable doubt and that the work of his
lawyer played no part in his conviction.
Affirmed.
GORDON and BURKE, JJ., concurring.
May 20, 1998
No. 1-97-1977
WILLIAM KRAMER,
Plaintiff-Appellant,
v.
LAWRENCE DIRKSEN,
Defendant-Appellee. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 96 L 9840
Honorable
James Heyda,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
Plaintiff William Kramer appeals the dismissal of his legal
malpractice action against defendant Lawrence Dirksen, his attorney
in a criminal case in which Kramer was convicted. The issue we
address is whether a criminal defendant who has been found guilty
is estopped from suing his lawyer for malpractice. The trial court
so found and dismissed the malpractice action. We affirm.
In June 1993, plaintiff and Seth Dahm were in a speeding car
that crashed. Dahm was killed. Plaintiff was later tried and
convicted of reckless homicide. See People v. Kramer, 278 Ill.
App. 3d 963, 664 N.E.2d 126 (1996). Plaintiff moved for a new
trial, arguing that he was denied effective assistance of counsel.
The motion was denied. The appellate court affirmed plaintiff's
conviction, finding that defense counsel's representation was not
ineffective and that, even if it were, plaintiff was not prejudiced
by defense counsel's conduct.
Plaintiff then sued his defense counsel, Lawrence Dirksen, for
legal malpractice. Plaintiff alleges that he was "not guilty" of
reckless homicide. He claims he was the passenger in the car and
that Dahm was the driver. Plaintiff further alleges that defendant
negligently failed to impeach a witness. Defendant knew that one
of the witnesses who identified plaintiff as the driver had earlier
said he could not actually see who was driving the car. Plaintiff
also claims that defendant negligently refused to call an expert
hired by plaintiff's family. The expert would have testified that
the eyewitnesses could not have identified plaintiff as the driver.
Plaintiff contends that as a result of defendant's negligence, he
was convicted.
Defendant moved to dismiss plaintiff's complaint under
sections 2-619(a)(4) and (a)(9) of the Code of Civil Procedure.
735 ILCS 5/2-619(a)(4), (a)(9) (West 1996). Defendant argued that
plaintiff's cause of action was collaterally estopped because the
issues of plaintiff's guilt, defendant's ineffective assistance
(and so malpractice), and the proximate cause of plaintiff's
conviction were decided in People v. Kramer, 278 Ill. App. 3d 963.
The trial court granted defendant's motion.
Plaintiff first raises a procedural argument on appeal that
the trial court "improperly treated defendant's motion to dismiss
*** like a motion for summary judgment." Plaintiff notes that,
under a section 2-619 motion to dismiss, all well-pleaded facts in
the complaint and reasonable inferences drawn from them are taken
as true. See Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 85, 651 N.E.2d 1132 (1995). But plaintiff's reading of
the scope of a section 2-619 motion is too narrow. Plaintiff
contends that the court erred by relying on facts decided in the
criminal case and reviewed in People v. Kramer, 278 Ill. App. 3d
963. But the court did not "rely" on the facts in People v.
Kramer. Under section 2-619(a)(4), the court relied on the finding
of guilty and resulting judgment that effectively "froze" the facts
that control this case. If plaintiff is estopped by a prior
judgment from alleging certain facts in his complaint, those facts
are not "well-pleaded" and need not be presumed to be true. Cf.
Nagy v. Beckley, 218 Ill. App. 3d 875, 883, 578 N.E.2d 1134 (1991).
We take judicial notice of the Kramer criminal case, not because it
disposed of "evidence" that refutes plaintiff's allegations, but
because it is a judgment that precludes certain allegations in
subsequent litigation. The motion to dismiss under section 2-
619(a)(4) was properly brought and ruled on.
We next address whether plaintiff's malpractice suit was
properly dismissed. We review a trial court's dismissal under
section 2-619 of the Code of Civil Procedure de novo. Kedzie &
103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993).
The elements of legal malpractice are: (1) the existence of an
attorney/client relationship which establishes a duty on the part
of the attorney; (2) breach of that duty; (3) proximate cause; and
(4) damages. Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96
(1982). In a usual legal malpractice case, a plaintiff must prove
that he would have successfully prosecuted or defended the
underlying suit if the defendant had not been negligent. Ignarski
v. Norbut, 271 Ill. App. 3d 522, 525-26, 648 N.E.2d 285 (1995). A
plaintiff who was a defendant in a civil case could recover for his
attorney's malpractice if the plaintiff showed that absent
defendant's malpractice, he would have escaped liability. See
Bucci v. Rustin, 227 Ill. App. 3d 779, 784-85, 592 N.E.2d 297
(1992). If we apply that standard here, plaintiff would be allowed
to recover if he proved that absent defendant's malpractice, he
would have been acquitted. But we agree with defendant that policy
reasons require a different analysis in a criminal case.
The majority of states require an additional element in legal
malpractice cases where the underlying case is criminal. It is
possible that a plaintiff who has been found guilty of a crime
would profit from his criminal activity. See Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997). To avoid this result, most states
require a legal malpractice plaintiff to prove, not that he would
have been acquitted but for the attorney's negligence, but that he
is innocent of the crime charged. See, e.g., Glenn v. Aiken, 409
Mass. 699, 702, 569 N.E.2d 783, 785-86 (1991); Carmel v. Lunney,
70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607
(1987); State ex rel. O'Blennis v. Adolf, 691 S.W.2d 498, 504 (Mo.
App. 1985); Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995).
In Levine, the seventh circuit concluded that Illinois courts
would follow the majority and elaborated on the burden faced by a
legal malpractice plaintiff who sues his criminal lawyer. Levine,
123 F.3d at 582. See also Walker v. Kruse, 484 F.2d 802 (7th Cir.
1973). The court reasoned:
"Tort law provides damages only for harms to the
plaintiff's legally protected interests, Restatement
(Second) of Torts, 1 comment d, 7(1) (1965), 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 ***, and the law provides no relief if the 'right'
is denied him." Levine, 123 F.2d at 582.
The court held that a plaintiff suing his former criminal defense
counsel must prove his own innocence and that a plaintiff was
precluded from doing so if his conviction has not been overturned.
Levine, 123 F.3d at 583.
The policy reasons for requiring a plaintiff to prove his
innocence discussed in Levine and relied on by other states are
persuasive. We agree that under Illinois law a plaintiff must
prove his innocence before he may recover for his criminal defense
attorney's malpractice.
We next address the second holding in Levine that, if a
plaintiff's conviction is not overturned, he is barred by the
doctrine of collateral estoppel from presenting evidence to prove
his innocence. See Levine, 123 F.3d at 583, citing Appley v. West,
832 F.2d 1021, 1025-26 (7th Cir. 1987); Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988); Restatement (Second) of Judgments,
85(2)(a), and Comment E (1982).
Collateral estoppel precludes a party from relitigating issues
decided in an earlier proceeding. Herzog v. Lexington Township,
167 Ill. 2d 288, 657 N.E.2d 926 (1995). Defensive use of
collateral estoppel occurs when a defendant seeks to prevent a
plaintiff from asserting a claim the plaintiff previously litigated
and lost. In re Owens, 125 Ill. 2d 390, 397, 532 N.E.2d 248
(1988). To invoke the doctrine of collateral estoppel, a defendant
must show that: (1) the issue decided in an earlier adjudication is
the same as the issue raised in the current case; (2) there was a
final judgment on the merits in the earlier case; and (3) the party
against whom estoppel is asserted was a party or in privity with a
party in the earlier case. Illinois State Chamber of Commerce v.
Pollution Control Board, 78 Ill. 2d 1, 7, 398 N.E.2d 29 (1979).
Although under Illinois law there are some circumstances
under which a plaintiff may relitigate issues previously decided by
a criminal trial court (see Talarico v. Dunlap, 177 Ill. 2d 185,
685 N.E.2d 325 (1997)), collateral estoppel bars plaintiff's suit
here.
In Talarico, our supreme court noted that "[i]t is generally
accepted that a criminal conviction collaterally estops a defendant
from contesting in a subsequent civil proceeding the facts
established and the issues decided in the criminal proceeding."
177 Ill. 2d at 193, citing 50 C.J.S. Judgments 922 (1997).
Talarico involved an exception to this general principle--an
exception not applicable here. Our supreme court held that the
plaintiff was not estopped from alleging that medication prescribed
by a doctor caused his criminal behavior even though plaintiff pled
guilty and admitted that his criminal conduct was knowing and
intentional. The court considered that the plaintiff's acceptance
of the plea bargain would result in a significant reduction in the
charges and sentence. The court also noted that the plaintiff was
motivated by the desire to finish medical school, which he could
not do if sentenced to prison. The court concluded that the
plaintiff lacked an "incentive to litigate" the issue before the
criminal trial court.
Plaintiff here had no similar lack of incentive to litigate.
Unlike the plaintiff in Talarico, plaintiff did not accept a plea
bargain. Nor has plaintiff otherwise shown how applying the
doctrine of collateral estoppel would be unfair. Plaintiff fully
litigated the issues of his guilt, whether he had effective
assistance of counsel, and whether he was prejudiced by his
attorney's actions.
Plaintiff suggests, however, that it would be unjust to
preclude him from litigating the issue of his innocence where his
guilty verdict may have been caused by defendant's malpractice.
But not only was plaintiff's guilt litigated in the earlier
criminal action, so were the issues of whether plaintiff's counsel
was effective and whether plaintiff was prejudiced by his counsel's
actions. We believe those states that have found that the issue of
"ineffective assistance of counsel" is the equivalent of negligence
and causation in a plaintiff's malpractice case, for purposes of
collateral estoppel, are persuasively reasoned. See Zeidwig v.
Ward, 548 So. 2d 209, 214 (Fla. 1989); Knoblauch v. Kenyon, 163
Mich. App. 712, 415 N.W.2d 286 (1987). In a legal malpractice
case, a plaintiff must prove that the attorney failed to exercise
a reasonable degree of care and skill in the performance of his
professional duties. See Smiley v. Manchester Insurance &
Indemnity Co., 71 Ill. 2d 306, 313, 375 N.E.2d 118 (1978). A
plaintiff must also show that the defendant's negligence caused the
adverse outcome in litigation. Ignarski, 271 Ill. App. 3d at 525.
To prove "ineffective assistance of counsel," a criminal defendant
must show that his attorney's performance fell "below an objective
standard of reasonableness under 'prevailing professional norms'"
and that defense counsel's performance "'so prejudiced the defense
as to deny the defendant a fair trial.'" People v. Perez, 148 Ill. 2d 168, 186, 592 N.E.2d 984 (1992), quoting Srickland v.
Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), and People v. Franklin, 135 Ill. 2d 78, 116-17,
552 N.E.2d 743 (1990). These standards require a criminal
defendant and legal malpractice plaintiff to prove the same
elements of a defense counsel's conduct. The standards differ only
in the way they have been articulated. They are the same for
purposes of collateral estoppel. See Ziedwig, 548 So. 2d at 214.
Put another way, an essential element of negligence and ineffective
assistance of counsel under the second prong of Strickland is
proximate cause. The finding in People v. Kramer that defense
counsel was not ineffective, and that even if he were, plaintiff
was not prejudiced, established that defendant's representation was
not a proximate cause of plaintiff's conviction
Plaintiff argues that the issue of whether his defense counsel
was negligent was not "fully litigated" because he did not have the
benefit of discovery during the criminal proceedings. Plaintiff
cites no authority for the proposition that an issue cannot be
fully litigated absent discovery. If we were to hold that
discovery is required before an issue is "fully litigated," we
would be contravening our supreme court's recognition of the
general rule that criminal judgments may have preclusive effect in
later civil suits. An issue has been fully litigated if it was
treated seriously when first litigated. See Talarico, 177 Ill. 2d
at 196. The issue of defendant's effectiveness was treated
seriously during the criminal proceedings. Plaintiff made an offer
of proof attempting to show that defendant failed to impeach a
witness and refused to call an expert witness. The matter was
fully argued before the trial court and on appeal. When the
appellate court concluded that plaintiff was not prejudiced, even
assuming ineffectiveness on the part of counsel, the court was
saying that, given the evidence in the State's case, defendant was
proven guilty beyond a reasonable doubt and that the work of his
lawyer played no part in his conviction.
Affirmed.
GORDON and BURKE, JJ., concurring.
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