concurring in part and dissenting in part:
I. An Overview
The difficult issue in this case asks how the demonstrable negligence of a lawyer representing a criminal defendant should be remedied through civil tort law. Based on vaporous public policy considerations, most courts addressing the issue require criminal defendants to prove they are “actually innocent” to win legal malpractice claims—an obligation that has no real analog when civil litigants sue their lawyers for negligent representation and no real connection to the harm inflicted. The duty criminal defense lawyers owe their clients has both a constitutional dimension rooted in tire right to counsel and an individual dimension rooted in the nature of the professional relationship. If a breach of that individual duty has caused a client to be convicted rather than acquitted, traditional malpractice law would afford that client, without regard to guilt or innocence, a tort remedy against the lawyer. I have tried unsuccessfully to discern genuine public interests served through an actual innocence rule and the deformation it inflicts on professional malpractice law. I, therefore, respectfully dissent from that *623part of the majority decision adopting such a rule. In this case, I would reverse and remand Jason Mashaney’s legal malpractice action for further proceedings, subject to some significant limitations.
The justifications offered in the caselaw for imposing an actual innocence requirement have been stated briefly and, for the most part, without much explanation. See, e.g., Levine v. Kling, 123 F.3d 580, 582 (7th Cir. 1997) (substantive discussion presented in five comparatively short paragraphs); State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 503 (Mo. App. 1985) (declaring without citation or explanation that “factual innocence” is “an indispensable element” of criminal defendant’s legal malpractice claim); Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 518 N.Y.S.2d 605 (1987) (public policy considerations discussed in single paragraph); but see Wiley v. County of San Diego, 19 Cal. 4th 532, 966 P.2d 983 (1998) (court offers more extended analysis supporting actual innocence rule but relies on Levine in key respects; some of its stated concerns arise even with the rule in place). The early cases pronounced the rule necessary to promote those public policies, and the later cases commonly have unreflectively reiterated that pronouncement with citations to those initial decisions. See, e.g., Kramer v. Dirksen, 296 Ill. App. 3d 819, 821-22, 695 N.E.2d 1288 (1998); Humphries v. Detch, 227 W. Va. 627, 633, 712 S.E.2d 795 (2011).
Mashaney’s circumstances present two complicating factors. First, the underlying sex crime charged, if true, would be especially repugnant. Though not explicitly stated in the caselaw, the courts adopting an actual innocence rule seem to recoil at the notion a person who may have committed a heinous offense ought to be able to bring a civil action for legal malpractice. But a person’s moral culpability for bad acts typically does not otherwise extinguish the legal liability of professionals providing substandard services to that person, even when those acts necessitate the services. Second, after being granted a new criminal trial, Mashaney entered an Alford plea to less serious (and less repugnant sounding) felony charges for the same alleged conduct and was adjudged guilty. How to factor that plea into his legal malpractice action with or without an actual innocence rule isn’t easy.
*624Those complexities are redoubled because the essential legal requirements for criminal defendants to successfully sue their lawyers for malpractice extend beyond this case and must foster fair results in different cases. That is, the rule laid down here will govern the cause of action generally. As the majority suggests, it may be next to impossible to fashion requirements achieving that objective for every permutation. But including actual innocence as a criterion ill serves basic fairness in that persons who have served lengthy prison sentences as a direct result of their lawyers’ negligence will be deprived of any tort remedy for that malpractice and some lawyers representing criminal defendants will escape liability when their civil counterparts would not.
In short, the actual innocence rule detrimentally distorts the law in ways disadvantaging criminal defendants suffering tangible harm because of their lawyers’ incompetence, leaving injuries unredres-sed that tire tort system would otherwise compensate. Rejecting that rule would better serve the true public policies embodied in the criminal justice process and in civil tort law. The requirement adopted in Canaan v. Bartee, 276 Kan. 116, 131-32, 72 P.3d 911 (2003), that criminal defendants obtain relief under K.S.A. 60-1507 before filing legal malpractice actions—thereby establishing both that their lawyers had provided representation falling below the constitutional standard of adequacy and that they had been materially prejudiced as a result—sufficiently guards the public interest in keeping plainly undeserving litigants from clogging the civil system with frivolous suits.
Before elaborating on why the actual innocence rule should be rejected, I mention the points on which I agree with the majority. First, the Board of Indigents’ Defense Services, as a subordinate state agency, is not a proper defendant. I offer no opinion on whether the State could now be substituted for the Board or named in an amended petition. That concern is moot, since the majority rejects Mashaney’s cause of action against any potential defendant. Second, Mashaney’s malpractice action was timely filed under the 2-year statute of limitations in K.S.A. 60-513. In Canaan, 276 Kan. at 131-32, the court held that a criminal defendant must win a 60-1507 motion vacating his, or her conviction to bring a legal mal*625practice action based on that conviction. Accordingly, a cause of action for legal malpractice does not accrue until the criminal defendant has prevailed on a 60-1507 motion. Measured that way, Mashaney’s malpractice action was filed within the limitations period.
II. Actual Innocence Element Distorts Malpractice Law
As the majority notes, the elements of a legal malpractice claim typically have been stated as requiring proof that the lawyer owed the party claiming injury a duty to use ordinary professional skill or knowledge and a breach of that duty causing the party a material loss or damage. Bergstrom v. Noah, 266 Kan. 847, 874, 974 P.2d 531 (1999). When the malpractice rests on a claim the lawyer botched litigation, the party must show he or she would have obtained “a favorable judgment in the underlying lawsuit had it not been for the attorney’s error.” Canaan, 276 Kan. at 120; Webb v. Pomeroy, 8 Kan. App. 2d 246, 249, 655 P.2d 465 (1983). The actual innocence rule adds an element to a malpractice claim against a criminal defense lawyer that has no direct counterpart when the claim arises from failed civil litigation. And it materially recasts the “favorable judgment” standard to substantially disadvantage criminal defendants suing their former lawyers.
The distorting effects may be better illustrated in an example uncluttered by Mashaney’s Alford plea. I offer that example as the model for discussing the phony public policy interests cited in favor of an actual innocence rule. I then look at variations on that paradigm, including the circumstances Mashaney presents. Suppose a jury convicts a defendant of robbery for punching the victim and grabbing his or her iPod, and the judge imposes a midrange guidelines sentence of 120 months in prison because the defendant already had two convictions for felony theft. This court affirms the robbery conviction on direct appeal. The Kansas Supreme Court denies the defendant’s request for review. The defendant then files a 60-1507 motion collaterally attacking the conviction based on the ineffective assistance of trial counsel. The district court denies the motion, and the defendant appeals. This court finds the lawyer was constitutionally deficient in a way that prejudiced the defendant’s *626right to a fair trial and grants the defendant a new trial. In due course, the Kansas Supreme Court denies the State’s petition for review. By that time, the defendant probably has been in prison for more than 60 months or 5 years—a fairly conservative estimate. The defendant again goes to trial on the robbeiy charge with a different lawyer. The jury finds him not guilty, and he is released from custody. The defendant then sues the lawyer who represented him in the first trial for legal malpractice.
In that scenario, the criminal defendant enters the legal malpractice action having shown to the satisfaction of the courts in the 60-1507 proceeding that his lawyer breached a constitutional duty of adequate representation and, in so doing, rendered the first criminal trial fundamentally unfair and having secured in the second criminal trial a jury verdict of not guilty. So in the second trial, the criminal defendant arguably received the favorable judgment he should have received in the first trial. Had the criminal defendant been acquitted in the first trial, he would not have spent 5 years in prison. By any reasonable definition, 5 years of wrongful imprisonment looks to be an injury or harm.
Under the traditional elements of a legal malpractice action, that criminal defendant ought to get a day in court to prove a civil claim for damages against the lawyer representing him in the first trial. Whether the criminal defendant would prevail or not is another matter. The actual innocence rule, however, imposes an extraordinary legal hurdle that would defeat many claims at the pleading stage or on summary judgment and likely would keep many others from being filed at all. Even at trial, the rule would impose a formidable barrier to otherwise meritorious claims. Proving actual innocence is far different from and far more difficult than showing that a criminal defendant would have been found not guilty—the ultimate “favorable judgment” in a criminal case. The courts adopting the rule invoke a variety of public policy interests to justify that barrier.
Although courts are not to examine the wisdom of the policy considerations animating statutes, since that would impermissibly intrude upon the province of the legislature, they should explain themselves when they .invoke policy in fashioning common-law *627rights and duties. Because the actual innocence rule alters a common-law cause of action—-a judicially created claim for professional negligence—-the courts adopting it in the name of public policy have an obligation to clearly state in a fairly comprehensive manner their reasoning. The failure to do so both abdicates judicial responsibility and obscures the rationale behind the policy, rendering its wisdom suspect.
III. Contrived Public Policies Don’t Support Actual Innocence
Seventh Circuit’s No Right to Acquittal Misstates the Law
A panel of the United States Court of Appeals for the Seventh Circuit laid down a cornerstone argument for the actual innocence rule in Levine, so I begin there. The panel reasoned that a criminal defendant who is, in fact, guilty has “no right” to an acquittal in a criminal prosecution and, therefore, can assert no “legally protected interest” compromised in his or her loss of liberty upon conviction. Levine, 123 F.3d at 582. In turn, that defendant cannot base a legal malpractice claim on the incompetence of his or her lawyer, even if that poor representation rendered the trial unfair and the verdict vulnerable on collateral attack. The criminal defendant’s resulting incarceration would not be a compensable injury. According to the Levine panel, a criminal defendant bringing a legal malpractice claim must prove he or she is factually innocent to establish the incompetent trial lawyer breached a protected duty and caused actionable harm. 123 F.3d at 582-83. The premise is wrong and the reasoning misguided.
A criminal defendant has a fundamental right to be proven guilty beyond a reasonable doubt grounded in the due process protections of the Fifth and Fourteenth Amendments to the United States Constitution. Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994); Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). And if the government fails to meet that burden in a given prosecution, the defendant should go free. The right belongs to anyone charged with a crime—guilty or innocent. See 397 U.S. at *628363 (“The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure.”); 397 U.S. at 364 (“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”). So to say someone who actually has committed a crime has no right to be found not guilty if the government fails to establish guilt beyond a reasonable doubt is simply incorrect.
By the same token, criminal defense lawyers owe a duty to their clients to hold the government to its burden of proof and to test the government’s case to highlight reasons jurors might doubt the evidence satisfies that constitutional standard. Those lawyers owe a qualitatively indistinguishable performance of that duty to clients they know or suspect are guilty and to clients they know or suspect are innocent. An incompetent performance is no less so because it has been rendered in the service of a defendant who may, in fact, be guilty. In any given case, dre lawyer’s breach of that duty can result in the conviction and imprisonment of someone who ought to have been acquitted. At least under the standard rules for legal malpractice suits, the client would have an actionable claim against the lawyer for the harm caused by that outcome, including the period of incarceration.
Incorporating an actual- innocence element into criminal malpractice claims doesn’t directly alter those principles. The rule simply divides the factually guilty from the actually innocent for purposes of bringing malpractice claims when they are otherwise similarly situated legally—both had a right to an acquittal in the criminal action if the government could not marshal sufficient evidence to convict, and both were owed a duty of competent representation by their lawyers. And both could otherwise seek damages in malpractice actions when the breach of that duty resulted in an unfair criminal trial, an improper conviction, and a loss of liberty.
Tort law provides a remedy-—-typically money damages—to Jones when Smith invades a statutory or common-law right of Jones or violates a statutory or common-law duty owed Jones, thereby causing injury to Jones. See Estate of Belden v. Brown County, 46 *629Kan. App. 2d 247, 269, 261 P.3d 943 (2011). In professional negligence actions, the moral blameworthiness of the injured party seeking relief doesn’t bar a claim. Thus, a person shot by police while robbing a bank may bring a medical malpractice action against the surgeon negligently removing the bullet rendering that person a paraplegic. The physician’s duty of care isn’t legally reduced or extinguished because the patient came to be injured through his or her own fault or criminal wrongdoing.
But the actual innocence rule injects moral blame into legal malpractice law with odd results. For example, a person gets in a fight outside a bar and hits and seriously injures another patron. The person is prosecuted for intentional aggravated battery, and the victim sues civilly for damages. So the person hires one lawyer to defend him in the criminal prosecution and a second lawyer to handle the civil suit. Each performs horrendously. The civil defense lawyer fails to assert a winning statute of limitations argument based on the 1-year period for bringing battery actions, and the jury returns a judgment in the mid-six figures. See K.S.A. 60-514(b). The criminal defense lawyer doesn’t file a motion to suppress his client’s highly incriminating statements given to a detective in a custodial interrogation without Miranda warnings. When the State can’t find the only independent witness to the fight, those statements become the decisive part of the prosecution case at trial, given the victim’s shaky identification. The jury convicts, and the individual receives a 41-month sentence. He loses his direct appeal but has the conviction set aside on habeas review. In the retrial, with new lawyer and without the incriminating statements, he is found not guilty.
With an actual innocence rule in place, the individual could sue his civil lawyer for malpractice and, in this scenario, likely win, recovering the amount of the judgment entered against him. But he would not have a viable claim against his criminal defense lawyer for damages based on the time he spent in prison. The result is, as I have said, peculiar in creating markedly different malpractice standards for civil practitioners and criminal practitioners. In the example, the client is equally blameworthy in both the civil and criminal cases. Yet, moral blameworthiness (lack of proof of actual *630innocence) would extinguish the criminal malpractice action but not the civil one. The rule effectively diminishes the potential liability of criminal defense lawyers even though they are duty-bound to protect their clients’ liberty interests, something that typically would be viewed as more valuable than the money damages commonly at stake in civil proceedings.
More peculiarly, perhaps, the rule also divides criminal defense practitioners for malpractice purposes based not on fulfillment of their legal duties but on the culpability of their clients. With an actual innocence rule, a criminal defense lawyer representing a guilty client is essentially granted immunity from civil liability for even the most egregious errors. Critics of the rule point out the illogic of that division, see Wiley, 19 Cal. 4th at 547-48 (Mosk, J., dissenting), and at least some proponents of the rule acknowledge it, see Glenn v. Aiken, 409 Mass. 699, 705, 569 N.E.2d 783 (1991).
Some, if not many, actually innocent criminal defendants would be unable to affirmatively prove their innocence by a preponderance of evidence in a malpractice action. They, too, would be deprived of a civil remedy for demonstrable lawyer incompetence leading to legally improper convictions. Similarly, depending on how “actual innocence” is construed, a criminal defendant convicted of a serious offense would be deprived of a civil remedy even though competent counsel would have effectively marshaled evidence likely producing a conviction for a substantially lesser offense and a significantly shorter period of incarceration. The West Virginia Supreme Court recently held that in a legal malpractice action, the criminal defendant must prove his or her actual innocence not only of the crime charged but any lesser offenses. Humphries, 227 W. Va. at 633. For example, a criminal defendant convicted of first-degree murder in Kansas receives a life sentence with no consideration for release for at least 25 years. If, however, a competently presented defense likely would have yielded a conviction for involuntary manslaughter based on a self-defense theory, a defendant with a clean record ought to receive a standard grid sentence of 32 months and would be a border-box candidate for probation. See State v. O’Rear, 293 Kan. 892, 901, 270 P.3d 1127 (2012) (unintentional killing resulting from use of excessive force *631in otherwise lawful act of self-defense constitutes involuntary manslaughter rather than murder); State v. Pennington, 43 Kan. App. 2d 446, 461, 227 P.3d 978 (2010). But that person would have no civil cause of action against the criminal defense lawyer whose incompetence led to his or her incarceration for years during the appellate challenges to the wrongful murder conviction.
Differences Between Civil and Criminal Law Do Not Support Actual Innocence Rule
Some proponents of the actual innocence rule argue the differences between the civil and criminal justice processes commend the rule. See Wiley, 19 Cal. 4th at 541-44. Again, the notion is misguided and gives short shrift to the individualized duty criminal defense lawyers owe their clients.
The criminal justice system protects broad societal interests in punishing individuals who violate statutory proscriptions against violent and otherwise especially deleterious behavior. The criminal, thus, inflicts an injury on the citizenry as a whole to be redressed with punitive sanctions, often including incarceration. Hence, a criminal case goes forward at the direction of and in the name of die government, and the individual victims directly harmed cannot call off that prosecution. Conversely, the civil justice system largely aims to vindicate individual rights by providing mechanisms to remedy breaches of contractual arrangements and to award compensation for commercial wrongs and physical injuries. Civil law is concerned with compensatory relief, not punishment. Given those differing objectives, the California Supreme Court, for example, has suggested it is simply “unjust” to allow a factually guilty criminal defendant to bring a malpractice claim against his or her lawyer. Wiley, 19 Cal. 4th at 539 (“While a conviction predicated on incompetence may be erroneous, it is not unjust.”). But that confuses the overarching purpose of the criminal courts with the much narrower duty at issue in any legal malpractice claim—the obligation of the lawyer to provide competent representation to his or her client. Ultimately, that obligation is a personal one between lawyer and client, the violation of which historically gives rise to civil liability if the professional incompetence results in harm. As I *632have said, that personal duty binds a criminal defense lawyer to his or her client regardless of the client’s guilt or innocence. Accordingly, tort law ought to afford a remedy for a violation of that particularized duty whether the lawyer’s dereliction inflicts an injury in a criminal prosecution or a civil case.
Advocates for an actual innocence element point out that the civil judicial process simply does not grant new trials to parties incurring bad results because of their lawyers’ negligence. Then-sole remedy lies in malpractice actions against those lawyers for money damages. But that seems to border on a non sequitur in arguing for an actual innocence requirement. A criminal defendant’s right to a new trial based on lawyer incompetence vindicates a societal interest in depriving a person of liberty only if he or she has had a fair trial and, in doing so, protects a constellation of constitutional rights bound up in that process. No similarly compelling systemic interest attaches to civil proceedings because no similarly compelling interest—liberty—may be lost in an adverse civil judgment.
They also say that a new trial affords criminal defendants sufficient relief for lawyer malpractice unless those defendants can prove their actual innocence. See Wiley, 19 Cal. 4th at 542; Mahoney v. Shaheen, Cappiello, Stein & Gordon, 143 N.H. 491, 496, 727 A.2d 996 (1999). But neither the societal interest in punishing only those criminal defendants receiving fair trials nor the availability of a 60-1507 remedy furthering that interest offers full relief for breach of the personal duty a lawyer owes a client—the actual interest directly at issue in a professional negligence case. A complete tort remedy for the violation of a lawyer’s duty to a criminal defendant client resulting in an unfair trial and an unwarranted conviction entails compensation for the deprivation of liberty between tire conviction and its reversal. The remedy for that harm can only come through a legal malpractice action against the lawyer whose incompetence led to the conviction. The traditional elements for malpractice actions appropriately afford that remedy, since the duty; the breach, and the harm befall the criminal defendant without regard to guilt or actual innocence.
*633 Misapplying Tort Law to Promote Actual Innocence Requirement
The advocates for an actual innocence rule invoke “but for” causation to deprive criminal defendants of any relief in legal malpractice actions. See, e.g., Wiley, 19 Cal. 4th at 540. In other words, unless the defendant is truly innocent, the root cause of his or her incarceration is the commission of the criminal act rather tiran the incompetent lawyering leading to the guilty verdict. The reasoning, however, rests on a rigid application of but for causation inconsistent with general tort law principles. Tort law looks to proximate cause to impose liability so that a later negligent act may supersede earlier wrongful conduct in establishing compensable fault. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420-21, 228 P.3d 1048 (2010). In a tort action, the injured party (here, tire convicted criminal defendant) must show that “but for” the conduct of the party breaching the duty owed (here, the incompetent criminal defense lawyer) the actionable harm (here, the incarceration) would not have occurred. 290 Kan. at 420. That reflects a determination of proximate cause. If the lawyer handling the criminal case fails to demonstrate the State’s inability to prove guilt beyond a reasonable doubt when a competent lawyer could have and would have done so, the client has been legally injured by being convicted and imprisoned. That is true whether the client was actually innocent or not. The client’s guilt did not bring about or cause the harm, and the harm would have befallen an actually innocent person in the same circumstances. So the client’s commission of a crime is not really a direct cause of the legal injury. The other aspect of proximate cause requires that the harm be a foreseeable consequence or result of the negligent conduct. 290 Kan. at 421. That is a given here. Plainly, a criminal defense lawyer can foresee that a product of his or her incompetent representation may be the conviction of the client despite the State’s inadequate evidence.
As I have already suggested, professional negligence actions typically conform to that model. Skilled professionals are not immunized against the consequences of negligent performance of their duties simply because parties obtain those services as the result of *634their own negligent conduct or intentional wrongdoing. Tort law carves out no such exception for physicians or lawyers representing clients in civil actions. Creating an exception for criminal defense lawyers with guilty clients seems analytically arbitrary, reflecting not so much a sound application of tort law as a deviation from it to prevent a class of disfavored individuals from pursuing legal malpractice claims.
The advocates for an actual innocence rule argue that without it, guilty criminal defendants would profit from their own wrongs if they can successfully sue their lawyers for malpractice. Wiley, 19 Cal. 4th at 537-38; Mahoney, 143 N.H. at 496. The law acknowledges an aphorism that a party should not benefit from his or her own wrongful conduct. And it may be invoked in all sorts of contexts. See Giles v. California, 554 U.S. 353, 365-68, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (noting maxim in discussing relaxation of rules on admission of out-of-court statements when party has deliberately procured the absence of an adverse witness); McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 55-56, 847 P.2d 1321 (1993) (noting maxim but declining to apply it to prevent defendant from asserting statute of limitations bar to plaintiff s suit for misuse of trade secrets); Estate of Amaro v. City of Oakland, 653 F.3d 808, 813 (9th Cir. 2011) (relating maxim to equitable estoppel and fraudulent concealment). But jurisprudence resting on generic sayings is distinctly airy, as this argument illustrates.
A criminal defendant successfully suing his or her lawyer for negligence based on a conviction and the resulting incarceration isn’t profiting from his or her underlying crime. He or she is being compensated for a legal injury—a loss of liberty—directly resulting from the lawyer’s malpractice in failing to obtain a favorable result for tire client in the criminal prosecution. That’s not profiting any more than a person injured in a motor vehicle collision “profits” from a damage award for the harm he or she has suffered. By contrast, Henry Hill quite arguably profited from his crimes to the extent he was paid for assisting in the preparation of “Wiseguy: Life in a Mafia Family,” a biography about his mob career, and its cinematic dramatization in “Goodfellas.” See Simon & Schuster, *635Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991).
Proponents of the rule contend that private lawyers will not take on paying clients accused of crimes or agree to serve on panels providing representation to indigent criminal defendants without the protection of an actual innocence rule. Glenn, 409 Mass. at 707-08; Mahoney, 143 N.H. at 496. They say the risk and consequences of malpractice actions from disaffected criminal clients would drive away lawyers. The fear is wholly speculative and entirely unsupported with any empirical data. If the concern were real, I would expect to see too few lawyers handling criminal cases in those states that treat criminal and civil malpractice actions the same, such as Indiana and Ohio. See Godby v. Whitehead, 837 N.E.2d 146, 151 (Ind. App. 2005); Krahn v. Kinney, 43 Ohio St. 3d 103, 105, 538 N.E.2d 1058 (1989). But the crisis does not appear to have materialized.
Moreover, Kansas, among other states, requires that a criminal defendant prevail on a 60-1507 motion before even filing a legal malpractice action. Canaan, 276 Kan. at 132. The criminal defendant, therefore, must effectively prove to a court that his or her lawyer performed incompetently and that incompetence rendered the criminal case and resulting conviction demonstrably unfair. See Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985). In fiscal 2012, for example, the Kansas district courts granted relief to less than 4 percent of the convicts challenging their convictions through 60-1507 motions. See Annual Report of the Courts of Kansas for Fiscal Year 2012, at 4 (2013). That effectively precludes convicted criminal defendants from pursuing malpractice claims based on insubstantial allegations of incompetent legal representation. A criminal defendant filing a legal malpractice action without having secured relief on a 60-1507 motion would face prompt dismissal on a motion on the pleadings. See K.S.A. 60-212(b)(6), (c). An actual innocence rule, therefore, is unnecessary to combat a doubtful plague of frivolous criminal malpractice actions.
*636 Actual Innocence Rules Would Not Simplify Malpractice Litigation
Courts favoring an actual innocence element in criminal malpractice actions, notably the California Supreme Court in Wiley, suggest those cases would otherwise be exceptionally difficult to adjudicate. Although legal malpractice actions arising out of criminal prosecutions present some challenging litigation issues, as I discuss, an actual innocence rule doesn’t directly resolve those challenges for the most part. They persist in any given malpractice action. With an actual innocence rule in place, there simply will be fewer malpractice actions litigated.
Without an actual innocence element, jurors hearing the malpractice action presumably would first consider whether the criminal defense lawyer’s representation fell below the required standard of professional competence. If so, they would then have to decide causation. On that score, the Wiley court suggests those jurors essentially would be instructed to determine by a preponderance of the evidence whether but for the lawyer’s incompetence the juiy in the criminal case would have found the defendant guilty beyond a reasonable doubt. 19 Cal. 4th at 544. The verbiage might vary some in an actual jury instruction, and the operative legal concepts would be explained. But that more or less seems to capture the issue. The Wiley court concluded jurors would be utterly flummoxed: “The mental gymnastics required to reach an intelligent verdict would be difficult to comprehend much less execute.” 19 Cal. 4th at 544. I don’t share the California Supreme Court’s dim view of jurors’ acuity individually or collectively as a deliberative body. Courts commonly entrust immensely complex issues to jurors, as antitrust or groundwater contamination suits illustrate. See MTBE Products Liability Litigation, 725 F.3d 65, 78-80 (2d Cir. 2013) (groundwater contamination); Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 824 (3d Cir. 2010) (antitrust); In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 532-34 (6th Cir. 2008) (antitrust).
The principal complicating factor, according to the Wiley court, lies in the differing burdens of proof at play in the malpractice action. 19 Cal. 4th at 544. The malpractice jurors would have to *637find the controlling facts to be more probably true than not true. One of those facts entails whether the jury in the criminal case would have found guilt beyond a reasonable doubt had the defense lawyering been competent. The same problem arises in civil malpractice cases in which the cause of action allegedly lost in the original suit required proof by clear and convincing evidence, such as a fraud claim or willful or wanton conduct necessary for punitive damages. See Kelly v. VinZant, 287 Kan. 509, 515, 197 P.3d 803 (2008) (fraud); K.S.A. 60-3702 (punitive damages).
Moreover, adding an actual innocence element to criminal malpractice claims would not affect the formulation of the causation issue at all. Actual innocence would impose a gatekeeper element jurors would have to resolve before getting to either breach of die standard of care or causation. Jurors presumably would be instructed that if they found the criminal defendant failed to establish actual innocence, they should return a verdict for the lawyer without addressing any other aspects of the case. If they found the criminal defendant to be actually innocent, they would then have to consider tire causation issue—-formulated just as it would have been in the absence of an actual innocence element.
The Wiley court also suggested that damages would be difficult to assess in a criminal malpractice action and termed the task “perplexing.” 19 Cal. 4th at 543. The injury principally entails an extended period of incarceration. A criminal defendant otherwise employable might have lost income, but the primary injury is the loss of liberty and the attendant noneconomic damages. The collective wisdom of 12 jurors would be especially insightful in rendering fair compensation for that sort of loss. See Domann v. Pence, 183 Kan. 135, 141, 325 P.2d 321 (1958).
The Wiley court also incorrectly reasoned that civil malpractice actions are much easier to resolve than criminal malpractice actions because the injured parties seek money damages equivalent to the money damages they should have received in the underlying civil suits lost through the lawyers’ negligence. But, of course, the harm in the underlying civil suit may well have involved personal injuries, including pain and suffering and other noneconomic damages, that prove no more easily quantifiable than a loss of liberty. The jury *638rendering a plaintiff s verdict in a malpractice action would have to make some evaluation of the reasonable damages in the underlying case to fashion an award. And juries hearing other tort actions routinely determine monetary damages to compensate for none-conomic injuries—-not just for direct financial losses. The argument about the difficulty in assessing damages is a phony one. More to the point here, an actual innocence rule wouldn’t materially alter the jurors’ task in translating a wrongful loss of liberty into a dollar amount reflecting fair compensation.
Actual Innocence Rule Fails in Its Stated Purposes
Caterwauling aside, the actual innocence rule neither advances substantial public policy objectives rooted in legal doctrine nor facilitates the resolution of malpractice claims against criminal defense lawyers based on the existing tort law. Rather, it simply reflects a value judgment that a group of criminal defendants—those who may have committed offenses—should be deprived of a civil remedy against their lawyers when a given lawyer’s abysmal performance resulted in a given defendant’s conviction and incarceration. As I have outlined, criminal defendants regardless of guilt or innocence have a right to competent legal representation. Lawyers have a correlative duty to provide that level of representation to their clients. And the judicial process should afford those clients, regardless of guilt or innocence, the opportunity for full recompense if a violation of that right and duty results in their conviction and incarceration. The actual innocence rule denies one segment of the community of criminal defendants a remedy afforded the rest of that community essentially based on a characteristic unconnected to the right being vindicated. Common-law rulemaking ought to be guided by sound legal principles and undertaken to advance equally sound legal doctrine. The actual innocence rule partakes of neither. It rests on what is fundamentally a political and, hence, legislative evaluation of worthiness.
IV. Malpractice Litigation Without Actual Innocence Rule
Because I would reject the actual innocence rule as improvident *639and inconsistent with established principles of both criminal law and tort law, I ought to discuss briefly how professional negligence actions would proceed without that rule. First, as required by Canaan, the criminal defendant would have to prevail on a 60-1507 motion. As I have said, the Canaan requirement provides an ample bulwark against frivolous malpractice actions. The Sixth Amendment measure for adequate representation applied to 60-1507 motions probably forgives more bad lawyering than the professional negligence standard governing malpractice actions. I will look at various outcomes that may follow a successful 60-1507 motion and how they would then play out in related professional negligence actions.
• The State retries the defendant on the original criminal charge, and he or she is found not guilty. The not guilty verdict certainly clears tire way for the criminal defendant to pursue a legal malpractice action against the lawyer in the original trial. As in a malpractice action based on mishandled civil litigation, the client would have to prove substandard legal representation caused the adverse outcome (a conviction) in the original criminal prosecution and led to a compensable injury. The client would have to prove those elements by a preponderance of the evidence.
But, as I discuss, an acquittal in the retrial would not be a necessary condition for bringing a malpractice action based on the adverse outcome of the original criminal prosecution. The liability issues in the malpractice action depend on whether the original criminal defense lawyer breached the duty to provide adequate representation and, if so, whether that breach caused the defendant harm—time in prison and lost income, for example. Those determinations have nothing to do with the outcome of the retrial of the criminal case. The result of the retrial or other disposition of the criminal case would bear on the measure of damages. If the criminal defendant were again found guilty in the retrial and received the same sentence, he or she could not have suffered legal harm as the result of any imprisonment following the original trial—die time already served would be credited against the new sentence.
*640Neither the outcome of the 60-1507 motion nor the verdict in the retrial of the criminal case would be admissible in the civil malpractice action against the original criminal defense lawyer. Kansas requires mutuality to invoke collateral estoppel or issue preclusion. See In re Tax Appeal of Fleet, 293 Kan. 768, 778, 272 P.3d 583 (2012); KPERS v. Reimer & Koger Assoc., Inc., 262 Kan. 635, 670, 941 P.2d 1321 (1997). Since the original lawyer would not have been a party in the 60-1507 proceeding or the second criminal trial, those judgments and the factual determinations supporting them could not be binding on him or her. Neither side could offer them in the malpractice action. Even in jurisdictions recognizing nonmutual, offensive collateral estoppel, the doctrine cannot be used to bind a party by a judgment reached in earlier litigation in which that party did not appear. See United States v. Mendoza, 464 U.S. 154, 158-59 & n.4, 104 S. Ct. 568, 78 L. Ed. 2d 379 (1984).
There are also practical considerations for excluding those rulings as evidence in the malpractice action. In deciding a 60-1507 motion, a court should grant relief if it concludes there is a “reasonable probability” that the jury would have returned a verdict other than guilty if tire defendant’s lawyer had performed in a constitutionally adequate manner. Chamberlain, 236 Kan. 650, Syl. ¶ 3. A reasonable probability in that context is a less demanding standard than the civil burden of proof of more probably true than not. See Smith v. Cain, 565 U.S. _, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012). So a court’s decision to grant a 60-1507 motion wouldn’t conclusively establish causation to the level required in a civil malpractice action.
The result of the criminal retrial ought not be treated as a conclusive determination of what the outcome of the original trial would have been in the absence of any legal malpractice. The evidence in tire retrial would be qualitatively different and very likely quantitatively different. At a retrial, conservatively some 5 years or more after the original trial, some witnesses might no longer be available. Even assuming their testimony from the first trial could be admitted—a debatable proposition given the original defense lawyer’s incompetence as .demonstrated in the 60-1507 proceed*641ing—it probably would not be as well received as live testimony. But the memories of the available witnesses may have been dulled by the passage of time. It is hard to say in a given case which side might be more disadvantaged. But the State, as the party bearing the heavy burden of proof, would more commonly be hindered in a retrial long after the crime had been committed. In some cases, however, new evidence might turn up for the retrial—a prison informant asserting the defendant confessed to the crime, for example. So a retrial should not be considered merely an instant replay of the first trial such that the result would plainly or obviously reflect what would have happened. In turn, the outcome of the retrial would not really help the jurors hearing the malpractice case in accurately assessing causation.
As I have indicated, in the malpractice action, the criminal defendant would have to prove by a preponderance of the evidence that tire performance of his or her lawyer in the original prosecution fell below tire accepted standard of professional care, thereby violating the duty a lawyer owes a client. And the criminal defendant would have to prove that but for the lawyers poor performance, the outcome of the original criminal case would have been more favorable, a finding of proximate cause. In broad terms, the proof would be comparable to what would be presented in a civil malpractice action, likely including expert testimony. Actual innocence has no bearing on those issues.
Damages in the malpractice action would flow from the sentence imposed following the conviction in the original criminal case. Assuming the criminal defendant were found not guilty in the retrial, the measure of damages would be the period of incarceration the criminal defendant served following conviction in the original prosecution. That would include demonstrable lost income and none-conomic damages compensating for the deprivation of liberty. If the criminal defendant had retained the malpracticing lawyer, the fee or a portion of it might be a recoverable damage. Because Mashaney had court-appointed lawyers for both the original trial and the direct appeal, I don’t explore the fee issue further. Nor do I venture any suggestion about whether a criminal defendant would have an independent breach of contract claim for fees paid to a *642malpracticing lawyer or what the elements or conditions precedent to that claim might be.
Jurors in the malpractice case obviously would hear evidence about the criminal defendant’s guilt. And some of it might be compelling. The criminal defense lawyer presumably would argue he or she did a reasonable job given the State’s evidence and information the client provided. Thus, the lawyer might argue defense options were limited because the client had admitted guilt in their pretrial conferences on possible strategies. But that sort of evidence of guilt, even if credited by the jurors, would not impose a legal bar to recovery in the malpractice action.
Actual innocence conceivably might become an issue on the extent of noneconomic damages. The criminal defendant might want to argue that the emotional distress of incarceration was particularly acute because he or she was, in fact, innocent. And the lawyer conversely could tiy to argue that the emotional impact wasn’t especially great because the criminal defendant actually committed the crime. The former seems a plausible theory; the latter less so. Either argument, however, would open up actual innocence. But in a given case, a district court could well find the whole matter of actual innocence sufficiently remote and distracting and likely to consume undue time as to justify the exclusion of evidence on the point. See State v. Prosper, 260 Kan. 743, 748-49, 926 P.2d 231 (1996); Doty v. Wells, 9 Kan. App. 2d 378, 379-80, 682 P.2d 672, rev. denied 235 Kan. 1041 (1984). I don’t plumb those evidentiary considerations further, since the discussion is wholly abstract given the majority’s position that actual innocence must be fully ventilated as an element of liability.
If the State chose to dismiss the criminal charge rather than retry the defendant, the civil malpractice action would unfold in the same way.
• The State retries the criminal defendant on the original charge, and he or she is found guilty. Much of the earlier discussion is equally applicable here. The conviction on retrial would not be admissible as to liability in the civil malpractice action. The Canaan decision does not hold otherwise. It deals only with the original criminal conviction rather-than the disposition of the charges after *643the defendant has won a 60-1507 motion. Canaan, 276 Kan. at 131-32. The sentence imposed after the retrial would be a principal consideration on damages. If the criminal defendant received a sentence equal to or greater than the actual time he or she spent incarcerated on the original conviction, there is no cognizable injury. Suppose the criminal defendant had spent 6 years in prison on the original charge. Following the conviction on retrial, the district court imposes a 6-year sentence, reflecting a downward departure. The criminal defendant receives credit for the time served and is released. In that circumstance, the criminal defendant winds up no worse off because of the original lawyer s substandard performance—he or she would have had to serve the time on a valid conviction. The same would be true if the sentence on retrial exceeded the time the defendant served on the original conviction, a more likely scenario. Negligence alone does not support a tort action. The negligence also must cause a compensable injury. Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 585-86, 214 P.3d 1173 (2009); Estate of Belden, 46 Kan. App. 2d at 269. So that defendant would not have a legally viable malpractice suit.
If the new sentence were less than the defendant’s time served, the damages would be confined to the period by which the time served exceeded the new sentence. Thus, if the criminal defendant had been in prison for 6 years and received a 5-year sentence following conviction on the retrial, the damages in the malpractice action would be limited to the economic and noneconomic harm from a year’s incarceration.
• The State retries the defendant on the original charge, and the jury convicts on a lesser included offense. This is essentially a relatively limited variation on the preceding scenario in which the jury convicts of the original offense in the retrial. The significant issue becomes the sentence imposed for the crime of conviction as compared to the time the defendant served on the original charge. If the new sentence is less, then the criminal defendant has a legal malpractice claim based on the additional time he or she spent in prison on the original conviction. If the new sentence is the same *644or greater, the defendant has suffered no actionable injury and, therefore, has no malpractice claim.
The lesser-included-offense scenario does, however, illustrate the analytical fragility of the actual innocence rule. Earlier, I alluded to the criminal defendant convicted of first-degree murder because his or her lawyer fumbled self-defense evidence that, if handled competently, would have led to an acquittal or a conviction for involuntary manslaughter. With an actual innocence requirement for legal malpractice actions, a criminal defendant would have a viable claim if he or she could prove to the civil jurors by a preponderance of the evidence that he or she acted in self-defense. But the defendant who proved that he or she lawfully resorted to self-defense but did so in an excessive or unlawful manner—constituting involuntary manslaughter—would have no civil claim for years spent in prison on the improper murder conviction. That stark dichotomy between a full civil remedy and no day in court at all cannot be justified on sound legal or policy grounds.[*]
*645• The State continues the prosecution, and the criminal defendant enters a plea rather than going to trial. This scenario includes Mashaney’s situation: he entered an Alford plea to two felonies different from tire original charges and received a sentence that looks to have been between 6 months and 1 year less than the time he had spent in prison on his original conviction.
Without an actual innocence rule, a criminal defendant’s plea to the original charge or an amended charge following a successful 60-1507 motion would make little difference in a civil malpractice action. Guilt or innocence would not be directly relevant to whether the original defense lawyer’s incompetence deprived the client of a favorable outcome in the criminal case. As with a conviction on retrial, the length of the sentence would be much more significant.
To the extent actual innocence becomes relevant in a given malpractice case, a criminal defendant’s statement made as part of a guilty plea that he committed the offense would constitute an admission and could be received as evidence. The resulting judicial finding of guilt and the judgment of conviction probably would not themselves be admissible. See Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 711-12, 732 P.2d 741 (1987). A plea of no contest entails no admission by the defendant and would be inadmissible. 240 Kan. at 711-12; K.S.A. 22-3209(2) (codifying that a no contest plea may not be used against the defendant in other proceedings). Here, Mashaney entered an Alford plea in which he did not dispute the State’s evidence, but he made ño admission of incriminating facts during the plea hearing and maintained his innocence of the charges. The district court accepted the plea and found Mashaney guilty of the amended charges of attempted aggravated battery based on the State’s proffer of evidence, it could have produced *646during a retrial. The Kansas Supreme Court has recognized that a criminal defendant entering an Alford plea makes no admissions of guilt. State v. Case, 289 Kan. 457, 464-65, 213 P.3d 429 (2009). I would, therefore, suppose that a finding of guilt based on an Alford plea would not be admissible in the malpractice action. Cf. Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, Syl. ¶ 1, 193 P.2d 656 (1948) (At a time when no-contest pleas were not recognized in state court practice, the court held that such a plea entered in federal court could not be used against a defendant as an admission in a civil action related to the same matters.).
While the character of the defendant’s plea is largely immaterial to liability in tire malpractice action, the sentence imposed directly affects potential damages. If the sentence is for time already served or a longer period, then the criminal defendant has not suffered a compensable injury to support a malpractice action. A shorter sentence, however, creates a compensable harm—presuming a finding of liability—resulting from the criminal defendant’s incarceration for the difference between the new sentence and the duration of actual imprisonment.
In this case, the record shows Mashaney received a sentence of 72 months or 5 years on the amended charges to which he eventually entered the Alford plea. The record also indicates that was less than the time he spent in prison following his original conviction, as his direct appeal and then his 60-1507 motion worked their way through the system. But the record is less than clear about exactly how long Mashaney was incarcerated. He appears to have been in prison for about 79 or 80 months. By my reckoning, Mas-haney ought to be permitted to proceed with a legal malpractice action in which his damages would be based on the period of incarceration by which his actual imprisonment exceeded the 72-month sentence. I would, therefore, reverse and remand for further proceedings.
The actual innocence rule doesn’t deal well with other dimensions of the criminal justice process that rest on arguments not directly tied to guilt or innocence. Thus, criminal defendants would have no civil remedy if their lawyers negligently failed to file winning motions to suppress key evidence. That would amount to a clear breach of the duty the lawyer owed the client directly, and the breach would lead directly to an unfavorable outcome in the criminal case. The rule’s analytical unsoundness may be illustrated with more exotic situations. For example, criminal defendants should be found not guilty if they act under compulsion—they commit crimes only because they face immediate and real threats of death or great bodily harm if they don’t. See K.S.A. 2012 Supp. 21-5206(a). But somebody acting under compulsion is not actually innocent; he or she has, in fact, committed the crime. Compulsion operates as a legal excuse, a value judgment that in those circumstances a person should not be punished for criminal conduct. See State v. Schreiner, 46 Kan. App. 2d 778, 796, 264 P.3d 1033 (2011), rev. denied 296 Kan. _ (2013). A criminal defense lawyer’s failure to raise or adequately present a valid compulsion defense would amount to professional negligence. But the client presum*645ably would be precluded from bringing a malpractice action because he or she couldn’t demonstrate factual innocence. Perhaps supporters of actual innocence would create an exception in that case, something that’s hardly clear from the caselaw. And while compulsion isn’t an everyday aspect of criminal law, it fairly tests the prudential merit of an actual innocence rule and shows the rule to be wanting.