Wisconsin Appellate Court Affirms Summary Judgment for Attorney in Legal Malpractice Action


A Wisconsin appellate court has affirmed a summary judgment in favor of an attorney in a legal malpractice case. In Lawton & Cates, S.C. v. Alswager, a client sued his former attorney for negligently representing him in criminal proceedings. The client was charged with operating a vehicle while intoxicated and hired the attorney two months prior to the trial.

The client claimed that he was involuntarily intoxicated because he mistakenly took his wife’s sleeping aid prior to consuming alcohol. The attorney agreed to have the client’s blood sample analyzed and retain an expert witness for the trial. However, the week of the trial the test results had not come back and the expert informed the attorney that he was unavailable to testify. The attorney unsuccessfully moved for a continuance, but filed an affidavit of the expert explaining the effects of ingesting the sleeping aid. Nevertheless, the client was convicted.

The attorney did not receive the blood test results until after the trial, but they ultimately revealed that the client had ingested one sleeping pill. The client then filed a legal malpractice claim against the attorney. The attorney successfully moved for summary judgment and the client appealed.

The appellate court affirmed. The blood test revealed that the client had consumed one sleeping pill, which could have impaired his decision making ability and caused him to unknowingly consume alcohol. However, the court found that the client had not presented any evidence that the pill did in fact impair him. Therefore, the client was unable to show that the attorney’s conduct caused the conviction.

Decision: Lawton & Cates, S.C. v. Alswager

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