(dissenting). In Watkins v. LIRC, 117 Wis. 2d 753, 763, 345 N.W.2d 482, 487 (1984), the Wisconsin Supreme Court stated that in Anderson v. Labor & Industry Rev. Comm., 111 Wis. 2d 245, 259, 330 N.W.2d 594, 601 (1983), it had "specifically recognized that an individual who has been the victim of discriminatory treatment and who prevails in an action brought pursuant to the Fair Employment Act should be 'made whole.’” The Watkins court further stated: "It would be contrary to the purposes of the [Fair Employment] Act if the person whose rights have been vindicated ends up in an economically worse position than when he or she started.” Id. at 764, 345 N.W.2d at 487.
Glamann has been the victim of discriminatory treatment and, for purposes of this litigation, she has prevailed in an action brought pursuant to the Wisconsin Fair Employment Act (WFEA). But she has not *663been made whole. She will have a judgment for lost wages in the amount of $2,200 with interest, but she incurred attorney fees of $10,858.401 and costs in the trial court and undetermined attorney fees in this court. We do not allow her to recover these fees and costs. Glamann has achieved a Pyrrhic victory. She will end up significantly worse off economically than when she started.
The majority denies Glamann attorney fees at trial because she did not prove them to the jury, and attorney fees on this appeal because there is no statute authorizing them. I conclude that Glamann proved her attorney fees and costs at trial and that under Watkins, supra, she is entitled to attorney fees and costs on appeal. Therefore, I respectfully dissent.
I. ATTORNEY FEES AT TRIAL
The majority denies Glamann attorney fees for trial preparation and trial of her discrimination suit within the malpractice suit. In part III of this opinion I point out that the defendants waived objection to the award of attorney fees and costs at trial and raise for the first time on this appeal their objection to the attorney fees on the ground that no proof of those fees was presented to the jury. I would not address an issue raised for the first time in their briefs to this court.
However, I will address the issue on its merits because it presents an important issue of first impres*664sion: In a legal malpractice action where the plaintiff is entitled in the underlying action or proceeding to an award of his or her costs and expenses including reasonable attorney fees if he or she prevails, is the defendant entitled to have the reasonableness of the attorney fees submitted to a jury or may attorney fees be determined by the court?
The case was tried assuming that Glamann’s discrimination claim had been timely filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations (DILHR). Had she prevailed in the administrative proceedings, Glamann would have been entitled to recover her costs and expenses, including reasonable attorney fees. Watkins, 117 Wis. 2d at 765, 345 N.W.2d at 488. Procedurally, Glamann would have submitted her claim for her costs and expenses to the DILHR after a decision in her favor on her discrimination claim.
The special verdict asked the jury five questions: (1) Was Glamann’s attorney negligent? (2) Was Gla-mann negligent? (3) What was the percent of negligence of each? (4) Did Command Performance discriminate against Glamann? and (5) What were her loss of pay and medical expense damages? In motions after verdict Glamann asked the court to add to the verdict the attorney fees and actual costs incurred by Gla-mann which were attributable to obtaining the finding of discrimination. The trial court granted Gla-mann’s motion and the judgment included an award of attorney fees of $10,858.40 and costs of $2,162.50.
The majority concludes that Glamann’s attorney fees were "an element of damages to be proven at trial." Majority opinion at page 660.2 This conclusion is *665correct only if the defendants were entitled to a jury trial on the question of the reasonableness of the requested attorney fees. This conclusion is incorrect because (a) determination of the reasonableness of attorney fees is a question of law, not of fact, and (b) Glamann’s attorney fees incurred in proving her discrimination claim did not become an element of damages until she had prevailed on her claim.
(a) Question of Law.
The majority does not contend that the defendants were entitled to a jury trial on the question of Glamann’s right to recover attorney fees. Apparently they agree that a victim of discrimination must be awarded attorney fees in order to be made whole under the WFEA. See Watkins, 117 Wis. 2d at 765, 345 N.W.2d at 488; In Matter of Estate of Trotalli, 123 Wis. 2d 340, 363-64, 366 N.W.2d 879, 890 (1985).
The majority concludes, however, that Glamann’s claim against her negligent attorney is a tort claim and that the defendants are entitled to a jury trial under sec. 805.01, Stats., and art. I, sec. 5, Wis. Const. Section 805.01 confers no right broader than that preserved by the constitution. The right preserved by the constitution is to have questions of fact determined by a jury, not questions of law. Kiley v. Chicago, M. & St. P. R. Co., 138 Wis. 215, 225-26, 119 N.W. 309, 314 (1909).
The question of the reasonableness of attorney fees is a question of law. Standard Theatres v. Transportation Dept. 118 Wis. 2d 730, 746-47, 349 N.W.2d 661, 670-71 (1984); State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423 n. 3, 385 N.W.2d 219, 225 (Ct. *666App. 1986). The determination of the reasonableness of attorney fees requires an exercise of discretion by the trial court. Upon review, the trial court’s determination of the value of an attorney’s services will be sustained unless the court abused its discretion. Standard Theatres, 118 Wis. 2d at 747, 349 N.W.2d at 671. Attorney-fee determinations have a "special nature.” Tesch v. Tesch, 63 Wis. 2d 320, 334, 217 N.W.2d 647, 654 (1974). In Tesch the court said:
The judge has been aware of the amount of time consumed by the trial and the nature and complexity of the issues involved. He has observed the quality of the services rendered and has access to the file in the case to see all of the work which has gone into the action from its inception. He has the expertise to evaluate the reasonableness of the fees with regard to the services rendered. It is not really the type of issue or question of fact where an adversary presentation is necessary to the presentation of evidence necessary to a determination. ... [T]he Hennen v. Hennen Case[, 53 Wis. 2d 600, 606, 193 N.W.2d 717, 720 (1972),] allows the supreme court on review to make an independent determination of the reasonableness of attorneys’ fees. [Emphasis added.]
Id. at 334-35, 217 N.W.2d at 654-55.
An independent review on appeal as to the reasonableness of attorney fees is possible "because the value of legal services is reviewed on appeal by judges who have expert knowledge as to the reasonable value of legal services.” Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 183, 214 N.W.2d 401, 403 (1974).
Determination of the value of legal services requires the exercise of discretion by a judge with the *667expertise acquired through training, experience and observation. Discretion should not be exercised by a jury. Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 362 N.W.2d 118 (1985) does not require a contrary result.
In Helmbrecht, 122 Wis. 2d at 124, 362 N.W.2d at 134, the court stated: "This is a suit alleging negligence of an attorney, and the Wisconsin Constitution guarantees a jury trial if the parties desire one.” Read in context, this statement merely confirms that an attorney is entitled to have a jury decide the question of whether he was negligent. See Chocktoot v. Smith, 571 P.2d 1255, 1258 (Or. 1977) ("Unlike its decision of a disputed issue of the professional standard of care, the jury cannot decide a disputed issue of law on the testimony of lawyers."). Chocktoot was discussed by the Helmbrecht court at length and with approval.
That the legal malpractice action is one sounding in tort does not mean that the issues of law in the suit-within-the-malpractice suit are somehow transformed into issues of fact. For a discussion of the problem in a legal malpractice case of allocating between the jury and the judge questions of fact and questions of law, see Leibson, Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony, 75 Ky. L.J. 1 (1986-87).
I conclude that a legal malpractice action does not change the general rule that in an action tried by a jury, questions of law are for the court to determine, but it is the function of the jury to pass upon questions of fact. A multitude of decisions establishes the general rule. 4 Callaghan’s Wisconsin PI. & Prac., sec. 33.02, p. 396 (3rd ed. 1978). The attorney’s negligence may involve issues in the underlying action usually decided by a judge, but the question of whether the *668attorney was negligent will still be a question of fact. I conclude that the approach adopted by the trial court is not precluded by sec. 805.01, Stats., or the constitution and was well suited to ensure that the "make-whole” objective of the WFEA was satisfied.
(b) Attorney Fees Not Provable Until Glamann Prevailed.
In White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445 (1982), the issue was whether a postjudgment request for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. sec. 1988, was a "motion to alter or amend the judgment” subject to the ten-day timeliness standard of Fed. R. Civ. P. 59(e). The court held that it was not and stated:
Section 1988 provides for awards of attorney’s fees only to a "prevailing party.” Regardless of when attorney’s fees are requested, the court’s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has "prevailed.” Nor can attorney’s fees fairly be characterized as an element of "relief” indistinguishable from other elements. Unlike other judicial relief, the attorney’s fees allowed under sec. 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action proved at trial. See Hutto v. Finney, 437 US, at 695 n 24, 57 L Ed 2d 522, 98 S Ct 2565.
As the Court of Appeals for the Fifth Circuit recently stated:
"[A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks *669what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e).” Knighton v. Watkins, 616 F2d 795, 797 (1980).
White, 455 U.S. at 451-52.3
These principles apply equally to an award of attorney fees under the WFEA. Glamann became entitled to an award of attorney fees only when the jury returned its verdict finding that Command Performance discriminated against her. Any evidence Glamann would have attempted to introduce, expert or otherwise, as to her attorney fees would have been inadmissible because she had not yet established her entitlement thereto. An inquiry into her entitlement to attorney fees could not commerce until she had prevailed.
Even if the majority is correct that Glamann should have proved through expert testimony what might have been awarded her as attorney fees if she prevailed, we penalize Glamann excessively and unnecessarily for the good faith mistake made by her counsel and the trial court. We announce herein a procedural requirement in discrimination-cum-legal malpractice suits which could not have been anticipated by the most experienced and diligent counsel and learned trial court. Applying the principles of Stivarius v. DiVall, 121 Wis. 2d 145, 358 N.W.2d 530 (1984), if we do reverse, we should reverse under sec. 752.35, Stats., and allow Glamann to prove her attorney fees and costs.
*670II. ATTORNEY FEES ON APPEAL
The majority denies Glamann’s motion for attorney fees on this appeal, to be determined by the trial court. Glamann’s failure to present to the jury proof of her attorney fees at trial cannot affect her right to costs and fees on appeal. The majority denies Gla-mann attorney fees on appeal because (a) they are not recoverable unless specifically provided for by statute and (b) the Wisconsin Supreme Court has not addressed awarding attorney fees on appeals under the WFEA. Neither conclusion has merit. The WFEA is a statute which does not specifically provide for attorney fees. This is a right created by the court in Watkins, 117 Wis. 2d 765, 345 N.W.2d at 488, to fulfill the purposes of the WFEA. The right to appeal fees was recognized in Watkins where the court stated: "We ... remand to DILHR with directions to determine a reasonable attorney’s fee award for Watkins, including reasonable attorney’s fees for this appeal. ” Id. at 766, 345 N.W.2d at 488 (emphasis added).
A victim of discrimination cannot be made whole if he or she is forced to bear any part of the cost of the litigation which vindicates his or her rights. "Without an award of reasonable attorney’s fees, few victims of discrimination would be in an economic position to advance both their individual interest and the public’s interest in eliminating discriminatory employment practices.” Watkins, 117 Wis. 2d at 764, 345 N.W.2d at 488.
The majority attempts to distinguish Watkins on the grounds that case was an administrative review, not an appeal from a circuit court jury trial. The majority demonstrates it has not grasped the "suit-within-a-suit” concept. As Lewandowski v. Continen *671tal Casualty Co., 88 Wis. 2d 271, 281, 276 N.W.2d 284, 289 (1979), emphasized, the ultimate goal in a legal malpractice suit is to determine what the outcome should have been if the issue had been properly presented in the first instance. The jury determined that Glamann’s employer discriminated against her and that she was damaged by that discrimination. When the negligent attorney and his insurer appealed this finding by the jury they acted in the stead of Glamann’s employer who would, presumably, have made the same appeal from the same determination by the DILHR. To deny Glamann her reasonable attorney fees and costs on this appeal because her negligent attorney has prevented her from proceeding as she would have in the absence of his negligence would frustrate the "make-whole” objective of the WFEA.
Admittedly Glamann cannot be made entirely whole because she must bear the attorney fees incurred in the negligence suit against her attorney and his insurer and may recover only her statutory costs in that suit. However, that result is not a function of the WFEA or of the nature of a legal malpractice action per se, but of the so-called American Rule as to recovery of attorney fees.
III. WAIVER
The trial court gave the defendants an opportunity to be heard on Glamann’s motion for attorney fees and costs. They did not take it. In their docketing statement they stated the issue to be that Glamann offered no proof to the jury that the DILHR would have awarded her attorney fees and that the award of attorney fees was excessive. Only in their briefs have *672they raised the issue that Glamann was required to prove to the jury the reasonableness of her attorney fees. They did not raise that issue in the trial court. We will not ordinarily consider issues raised for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140, 145 (1980). I see no reason in this case to depart from this rule.
The defendants state that the" court awarded Glamann $13,020.90 for her attorney fees at trial. In fact the court awarded Glamann attorney fees in the amount of $10,858.40 and expenses attributable to her discrimination claim in the amount of $2,162.50. Since the defendants do not challenge the award of such expenses, we should not reverse that part of the judgment.
The majority opinion does not address the judgment insofar *665as Glamann was awarded her trial expenses other than her attorney fees.
An award of attorney fees to Glamann is not unlike the award of prejudgment interest which the majority concludes is awarded as a matter of law and need not be submitted to a jury. Majority opinion at page 658.