(dissenting). I respectfully dissent from this Court’s decision that a determination of causation in cases of appellate malpractice is a question of law that must be decided by a trial judge and not a question of fact to be resolved by a jury-
INTRODUCTION
Foundationally, the majority opinion works from an apparently simple premise — namely, that judicial appeals are resolved exclusively as matters of *611law, not fact. Because courts decide matters of law, while juries must "remain the factfinder,”1 the majority concludes that only the trial judge may determine if an underlying legal appeal would have been successful.2 For the reasons stated below, I do not subscribe to this reasoning.
i
A prima facie case of appellate malpractice requires that a plaintiff establish, inter alia, that the defendant’s negligence "was a proximate cause of [the plaintiff’s] injury. . . .” Coleman v Gurwin, 443 Mich 59, 63; 503 NW2d 435 (1993); Basic Food Industries, Inc v Grant, 107 Mich App 685, 690; 310 NW2d 26 (1981). This "causation” mandate requires a plaintiff to prove that, absent the defendant’s negligence, the plaintiff would have succeeded in the underlying, never-taken appeal. Coleman, supra at 63. In this respect, the plaintiff is charged with proving what is often referred to as a " 'suit within a suit.’ ” Id. at 64; Basic Food Industries, supra at 691 (quoting 45 ALR2d 5, § 2, plO).
A
In an action for appellate malpractice, the determination of "causation” demands that a decision-maker decide, at trial, how a particular panel of the appellate court should have ruled if the underlying appeal had been properly taken by the defen*612dant.3 It is notable that, in making this determination, the decisionmaker is not guided by an appellate record: an appellate court has not rendered a ruling or decision. Accordingly, the underlying "suit within a suit” is simply a hypothetical inquiry — one that requires the decisionmaker to retroactively examine the law as it existed at the time of the never-taken appeal in a suit between different parties in an entirely different legal contest. I believe that such an inquiry concerns an issue of fact to be answered by the factfinder.
The question "What is the applicable law?” is unmistakably one of the most important inquiries to be resolved at a trial. This query — which generally requires the decisionmaker to determine what the law presently is — raises an "issue of law” properly resolved by the trial judge. This is because the question demands an articulation of those particular laws that must be applied in the actual dispute presently before the court. This articulation, therefore, represents a precedential legal conclusion properly made by the trial court.4
However, this important inquiry must and does change when determining causation in an action for appellate malpractice. Because the decision-maker, at trial, must look retroactively to the law *613as it existed at the time the appeal would have been taken, the important issue is no longer "what is the law?” but, instead, "what was the law?” Simply, how this law is examined at trial changes greatly in the context of an appellate malpractice action.
The important query, therefore, is straightforward:
What law was in existence at the time an appeal would have been taken?
Notably, the answer is equally simplistic: this inquiry into the past is like any other search for fact. What the law was is not a legal conclusion to an "issue of law” but, instead, is a present assertion of fact properly deduced by examining the field of law as it existed at the time an appeal should have been taken.5 While this assertion arises in the present (i.e., at the malpractice trial), it is inextricably founded in the past — based on a prior set of facts and affairs objectively determinable by any layperson. Further, the query does not demand that a judge articulate a binding, prece*614dential legal decision on the present state of law. Rather, it simply asks the decisionmaker to gaze into the past and identify what the law was. The answer, given in the context of a hypothetical appeal that never took place, is neither binding nor precedential as a legal ruling — it is simply an assertion of fact made for the purposes of determining "causation.”
The remaining issue is who should answer this "question of fact.” The general rule in Michigan is that questions of fact are properly resolved by a jury. I am unpersuaded that this rule should be altered simply because the factual issue arises in an appellate malpractice case and, accordingly, would leave the determination to a jury.6
B
Even if one concludes that the identification of applicable law in an underlying appeal is a task properly entrusted to the trial court, this does not suggest (although the majority does)7 that there is no proper role for a jury in the "causation” determination. The fact is that law, no matter how adduced, must be applied to fact to reach a determination of causation.8 Such an application is *615unquestionably a task within the province of a jury.9
This hybrid process of applying law to fact is mistakenly ignored by the majority.10 This oversight disregards well-recognized distinctions between the roles of trial judge, and of jury, in our system of justice. However, because the issue was neither discussed by the majority nor by the Court of Appeals, I decline to address it in greater detail.
c
I am also troubled that a determination of causation by the trial court in an appellate malpractice case may be inconsistent with Michigan case law and court rules. This conclusion is based on the fact that resolution of the "case within a case” *616is analogous to an action for a declaratory judgment. In effect, the decisionmaker is being asked to declare the rights of certain persons in an underlying appeal that has never taken place.
Michigan law requires that declaratory judgments be made "[i]n a case of actual controversy . . . .” MCR 2.605(A)(1); Allstate Ins Co v Hayes, 442 Mich 56, 65; 499 NW2d 743 (1993). This prerequisite — similar in purpose to the "case or controversy” requirement of federal law11 — is aimed at insuring the justiciability of certain cases brought before Michigan courts. Id. at 66 ("Properly understood . . . the actual controversy requirement is simply a summary of justiciability as the necessary condition for judicial relief ”). Importantly, the requirement has been recognized by this Court as "prevent [.ing] a court from deciding hypothetical issues. ” Shavers v Attorney General, 402 Mich 554, 589; 267 NW2d 72 (1978). (Emphasis added.) Without satisfying the requirement, a case may not be resolved by the court:
[I]f the issue is not justiciable because it does not involve a genuine, live controversy between interested persons asserting adverse claims, the decision of which can definitively affect existing legal relations, a court may not declare the rights and obligations of the parties before it. [442 Mich 66. Citations omitted. Emphasis added.]
Because the underlying appeal in an appellate malpractice case — the determination of causation *617—is a hypothetical inquiry not actually before the trial court, the underlying appeal itself does not involve a "genuine, live controversy” between interested persons.12 Accordingly, resolution of this "hypothetical issue” as a question of law is arguably violative of the court rule, as well as Michigan case law, in spirit if not in fact.
ii
I am also troubled by the majority’s attempt to distinguish appellate attorney malpractice decisions from other professional malpractice cases where this Court has permitted juries to make causation determinations. The majority argues that while in other professions there are "no predetermined rule[s] discoverable by man that determine[ ] causation,” ante at 595, appellate malpractice cases are decided by predetermined, neutral principles of law that dictate only one correct result. I believe that this rationale is both tenuous and self-serving, and fear that this Court’s holding will only further alienate other professions from the legal system.
A
The majority premise that there can be but one "correct answer” to a legal issue is somewhat accurate insofar as judicial resolution of a legal issue is also a ñnal pronouncement on a question of law. It has been said that, like the proverbial baseball umpire, an appellate court does not have the final word because it is correct, but is nevertheless correct because it has the final word. Therefore, there may arguably be one "correct” answer to a legal question insofar as that answer *618is ultimately given by a particular jurisdiction’s highest court.13
Be that as it may, the majority’s premise is only relevant if its first assumption, i.e., that the causation issue is also a question of law, is valid. As previously discussed, it is my view that the causation determination in an appellate malpractice case does not require that a jury decide what the law is — i.e., the jury does not pronounce, resolve, or otherwise create a principle of law. Rather, the jury is asked to identify what the law was, and apply it to the facts of a never-taken appeal. In effect, the jury is simply guessing what principle of law might have been applied by the appellate court. This guess is not binding on subsequent courts or juries; it will never be annotated or summarized as a "legal ruling”; it will appear in neither hornbook nor case text as a "legal principle” or "rule of law.” It is not the resolution of a "legal issue,” but, instead, a causation determination made by the jury to resolve that malpractice case before it.
B
The majority’s premise concerning predetermined, neutral principles is used to distinguish causation determinations in appellate malpractice cases from identical determinations in other professional malpractice scenarios, particularly medical malpractice. Because the premise supposedly forecloses alternative or dissenting viewpoints, it also demands that legal issues have only one *619"correct” resolution.14 There being no possibility for a legitimate dispute about an issue of law, prediction of a legal outcome by a jury is absolutely precluded — a decision must be made by the trial judge.15 For the reasons detailed below, I subscribe neither to the premise nor to its application by the majority.
Even if one concedes the existence of such neutral principles in the law, I fail to see how this conclusion distinguishes the legal profession from other fields of expertise. Similar principles certainly exist in other professions. There is in medicine, for example, always an ultimate medical explanation of why a person becomes ill or dies. Just because this reason cannot be accurately discerned, or just because different doctors may disagree on its validity or applicability in a certain factual scenario, does not make the explanation any less "neutral” in its applicability. Similarly, in the engineering profession there are ultimate scientific principles — rules of mathematics and physics, for example — that, if accurately discerned, explain why certain events or results occur in specific factual situations. Again, while the existence of the principle may be difficult to identify, and reasonable engineers or scientists may disagree on its validity or applicability to a specific factual scenario, this does not make the principle any less "neutral” or "predetermined.” The same can be said for the fields of accounting, finance, psychology, mathematics, and virtually any other profession._
*620Therefore, if the majority rationale is accepted it must also be acknowledged that there is always, in almost any professional malpractice question, one "correct” answer or response to a specific factual situation. The existence of this "correct” answer does not preclude the existence of alternative, and apparently valid, explanations. Rather, the existence of these alternative explanations gives rise, as the majority references, to "probabilities”16— scientific probabilities, medical probabilities and, I believe, legal probabilities. Such probabilities do not necessarily mean that there is no one universally "correct” answer — rather, they only suggest that the "correct” answer to a particular factual scenario may deviate from the actual answer by virtue of its probability. Because reasonable jurists may disagree on the appropriate answer to a given factual scenario in the law, the legal profession is really no different than any of its professional counterparts.
The important question, therefore, is this: If a jury may decide issues of causation in medical, engineering, accounting, and scores of other complicated professional malpractice scenarios, why preclude such a determination in the legal malpractice case? The majority explains that, because the appeal presents issues of law exclusively, and because there is only one correct answer to an issue of law, that there is no room for disagreement and a jury verdict is thus precluded. Ante at 595-596. There are two problems with this reasoning. First, appeals do not exclusively present issues of law. Even if "neutral” principles of law do exist, and even if they must be resolved, articulated, or *621determined by the trial judge, the determination of a "correct” answer requires that such principles be applied to unique factual patterns, and this is a task within the exclusive province of the jury. See ns 13-15 and accompanying text.
More problematic, however, is the implicit assumption that permeates the majority opinion: namely, that when it comes to identifying the "correct” answer, " '[a] judge is clearly in a better position to make this determination.’ ”17 In effect, the majority would have the trial court both articulate the legal principle and apply it to the facts of an underlying appeal to reach a decision regarding causation (the "correct” result) on its own. Presumably, such a broad grant of power is justified because a judge is more qualified to understand the law than is a jury. If this sort of reasoning is adopted, however, then must we also concede that the doctor is better able to understand "issues of medicine,” the engineer better able to understand "issues of engineering,” and the accountant better able to understand "issues of accounting” than is the ordinary jury of laypersons? And, if we must continue to insist that juries decide causation in these types of malpractice cases, then must we not also concede that a jury of doctors, engineers, or accountants is more appropriate?
The answer is in the negative.18 We trust juries of laypersons to make important determinations of causation in malpractice cases involving other professions. Similarly, we should trust juries to make such determinations — to apply law to fact— *622in appellate attorney malpractice cases. The dilemma, if it exists, really lies in the structure of our legal system. The majority argues that in an appellate malpractice action an underlying appeal is decided as an "issue of law.” Even assuming the accuracy of this assertion, such a unique situation could never arise in other nonlawyer malpractice cases simply because there are no "underlying appeals” in these sorts of malpractice actions. Accordingly, the issue of causation in a medical malpractice case (or any other malpractice case with the exception of legal malpractice) will never be decided as an "issue of law” and, accordingly, will never not be decided by a factñnder. What the majority really does, therefore, is advantageously utilize the unique procedural posture of appellate malpractice cases to carve out an exception — for attorneys only — from the jury system. This approach is self-serving and has the potential to reinforce an already problematic image of systemic attorney self-protection and further alienate from the legal system our peers in the other professions.
c
In summary, even if I were to concede that there is only one "correct” answer to a legal question, I cannot conclude that permitting a jury to make a causation determination in a case of appellate malpractice — i.e., to guess how a never-taken appeal would have been resolved by a hypothetical appellate court — is any more denigrating to the law or the judiciary than are similar determinations in malpractice scenarios involving other professions. Juries in medical malpractice cases are routinely asked to determine what would have happened to a patient had an alternative medical procedure been employed by a doctor. Similarly, *623juries in products liability or engineering malpractice cases are often required to determine whether an accident or event would have occurred had a different design or manufacturing process been employed. These determinations of what might have transpired, had an alternative course of action been taken, are precisely the sorts of questions we routinely call upon juries to resolve. Their answer, in an appellate malpractice action, is no more caustic to the law than it is to other professional endeavors.19
I certainly agree with the majority that we should not allow the jury to make law. However, my position does not permit a jury to "make law” any more than it allows a jury to articulate medical or engineering principles. Nor does it argue that juries are as good, or better than, the judiciary at determining or articulating the law. Juries are no more qualified for this task than they are for discerning and applying principles of medicine or engineering. Indeed, even if so qualified, *624such articulation and determination is simply not the role of a jury. The jury should merely be permitted to do that for which it is impaneled— determine, among competing probabilities, what result might have occurred had something different been done by a defendant.
hi
Another aspect of the majority opinion that I find troubling is the blurring of important distinctions between determinations of "proximate cause” and "cause in fact” in cases of appellate malpractice. This oversight has the effect of intruding upon traditional roles of a jury in vitally important causation determinations — a role that is not, and should, not be, diminished simply because it is implicated in an appellate malpractice appeal.
As previously discussed, a prima facie case of appellate malpractice requires that a plaintiff establish that the defendant’s negligence " 'was a proximate cause of [the plaintiff’s] injury . . . .’ ”20 This Court has previously alluded to the fact that the issue of "cause in fact” may properly be analyzed as part of a "proximate causation” determination.21 Nevertheless, there can be no doubt that "proximate cause” and "cause in fact” are distinct and separate issues, and that the resolution of each rests upon unique considerations.22 Indeed, the majority concedes this *625very point.23 However, the majority also concludes that the distinction between "proximate cause” and "cause in fact” is "irrelevant to the resolution of the instant case.” Ante at 586, n 14.241 disagree.
In Michigan, proximate causation " 'is essentially a problem of law.’ ’,25 Often referred to as "legal cause” or "responsible cause,”26 proximate cause is basically a determination whether an actor may be held legally responsible for a harm.27 Being a subject for legal determination, proximate cause questions may properly be resolved by the trial judge. In the context of an appellate malpractice appeal — where it is one of the prima facie elements of a valid claim28 — proximate cause is *626essentially a preliminary determination whether a plaintiff has alleged enough to get to a jury.
Cause in fact, also known as "but for” causation,29 is simply "[t]hat particular cause which produces an event and without which the event would not have occurred.”30 While often "hopelessly confused” with proximate causation,31 the cause in fact question is well recognized as the quintessential issue of fact to be decided by a jury:
[T]he simplest and most obvious problem connected with "proximate cause” is that of causation in "fact.” This question of "fact” ordinarily is one upon which gill the learning, literature guid lore of the law are largely lost. It is a matter upon which lay opinion is quite as competent as that of the most experienced court. For that reason, in the ordinary case, it is peculiarly a question for the jury. [Prosser & Keeton, Torts (5th ed), §41, pp 264-265. Emphasis added.]
The distinction between "cause in fact” and "proximate causation” cgmnot be overemphasized in cgises of appellate malpractice. Proximate cause is an "issue of law” appropriately determined, as a preliminary matter, by the trial judge. Cause in fact questions are "issues of fact” that must be decided by the factfinder — commonly a jury.
In the case at bar, the trial court’s ruling that *627plaintiff had established sufficient elements to submit the question to the jury was, in fact, a completely appropriate proximate cause determination. The majority’s conclusion that the lower court erred by leaving the proximate causation issue to the jury32 simply ignores the fact that the trial judge explicitly ruled on proximate causation when she determined, in the context of plaintiff’s summary disposition motion, that plaintiff had established all of the elements of a prima facie case of appellate malpractice:
The Court fínds that Plaintiff has met the Basic Foods test[33] as to causation and damages as well as the attorney-client relationship and claimed negligent acts, and thus has established a prima facie case of professional negligence.[34]
*628Having properly determined that a prima facie case had been established, it was then within the exclusive province of the jury to determine whether defendant’s actions (or inactions) were those particular "causes in fact” that resulted in plaintiff’s injury. The majority would apparently abrogate this important distinction between the role of judge, and that of the jury, in an appellate malpractice case.
I also disagree with the majority that the trial judge "ruled that the issue whether the underlying suit would have been successful was one for the jury to determine.” Ante at 604. Not only does this conclusion ignore the trial judge’s express ruling on the prima facie elements of an appellate malpractice case, but in fact all the trial judge said concerning who could make causation determinations was that
the suit within a suit doctrine does not ipso facto call for this finding to be made as a matter of law before trial but can be a question for a jury with proper instructions on proximate cause and damages including not only the result of an appeal, but the loss of the value of the opportunity to appeal . . . including the lost opportunity for settlement pending appeal. [Citing Ignotov v Re-iter, 425 Mich 391; 390 NW2d 614 (1986). Emphasis added.]
I interpret this language as holding that not every "suit within a suit” must be resolved exclusively by the trial judge. The rationale for this conclusion is that some underlying suits will raise issues of fact — such as whether there was a lost opportunity to settle or what sort of actual damages resulted from the failure to appeal — that must be resolved by a jury considering factual evidence. I subscribe to this reasoning and note *629that it finds some support, albeit nonbinding, in a prior Court of Appeals decision authored by a member of this Court. Then Judge Riley’s opinion in Basic Food explained the general purpose of the "suit within a suit” concept:
[I]t is at least arguably true that the suit within a suit requirement serves to insure that the damages complained of due to the attorney’s negligence are more than mere speculation.2
[Id. at 693.][35]
In the case at bar, plaintiff’s complaint included allegations that, had a proper appeal been taken by defendant, plaintiff would not have been required to pay the damage judgment.36 This judgment represented the actual "cost” or "damages” to plaintiff arising from defendant’s failure to appeal. I agree with the Basic Food Court that the "suit within a suit” requirement is aimed, in part, at insuring the certainty of alleged damages. Coleman, supra at 64. I further agree with the Basic Food Court that proof of damages must be based on factual evidence, not mere speculation. Basic Food, supra at 693, n 2. This question of "cer*630tainty,” however, is an issue of "fact” that must be resolved by a jury. I do not believe, therefore, that the trial judge erred by simply (and accurately) recognizing that some underlying appeals in a case of appellate malpractice will involve issues of fact —decided on factual evidence — that must be resolved by a jury.
IV
Finally, I write to express my disagreement with the majority’s conclusion that its reasoning "is overwhelmingly embraced by our sister jurisdictions,” and that "at least nineteen jurisdictions directly addressing the issue have found it to be one of law, and no reported decisions have held otherwise.” Ante at 601. In fact, many of the cases cited in support of this conclusion do not justify the majority holding here. For example, the court in Phillips v Clancy, 152 Ariz 415; 733 P2d 300 (Ariz App, 1986), did not hold that an underlying appeal in an appellate malpractice case must be resolved as an "issue of law” by a trial judge exclusively. Rather, the Phillips court concluded that such appeals present mixed questions of law and fact and that the jury should apply the law to the facts to resolve the underlying appeal and determine causation:
Therefore, on remand, in the "case within the case,” the jury should be instructed on the applicable . . . law and regulations and be asked if, based on the facts presented, but for the alleged negligence, [the plaintiff] would have been entitled to disability benefits. In short, legal issues are to be decided by the judge; factual issues are to be decided by the jury.[37] [Id. at
*631Similarly, at least one reported decision from a state supreme court has apparently held that the causation issue in an appellate malpractice case demands jury resolution. The Nevada Supreme Court in Selsnick v Horton, 96 Nev 944; 620 P2d 1256 (1980), reversed a lower court grant of summary judgment in favor of an attorney defendant and noted:
Whether [the defendant’s] conduct in not pursuing the appeal . . . fell below that of a reasonable attorney is an issue of fact which should have been resolved at trial. [Id. at 946.]
Clearly, the Selsnick majority believed that the question whether defendant’s conduct constituted the tort of negligence was an "issue of fact” to be resolved by the jury. This determination necessitates a finding of "causation.” Id. at 946 (Gunder-son, J., concurring in part and dissenting in part).38 Accordingly, it is also clear that the Nevada Supreme Court decided that the lesser-included issue of "causation” was one properly entrusted to a jury.
Further, I find the following decisions — cited as supportive by the majority — unpersuasive for the reasons indicated: Chicago Red Top Cab Ass’n, Inc *632v Gaines39 (summary disposition was awarded on other grounds; the causation issue was never discussed by the court because the plaintiff failed to allege an "injury”); Jones v Psimos40 (the causation question was not an issue; the only relevant language is dicta); Dings v Callahan41 (the causation question was neither an issue nor discussed by the court); Cabot, Cabot & Forbes Co v Brian, Simon, Peragine, Smith & Red fearn42 (the federal court narrowly construed a prior Louisiana Supreme Court decision [Jenkins],43 which held that, in an action for an attorney’s failure to file suit, causation and damage questions are up to the jury to decide); Romano v Weiss44 (the causation issue was narrowly addressed; the court did not decide who makes the causation determination where the dispute centers on unsettled law; the malpractice case was not even tried before a jury); Rinehart v Maiorano45 (the causation question was never raised by the parties or addressed by the court); Goldstein v Kaestner46 (the court only discusses the standard of review; the decision says nothing about who determines causation in a malpractice *633trial); Better Homes, Inc v Rodgers47 (the causation issue was not discussed by the court); Sutton v Whiteside48 (the causation issue was not discussed by the court; in fact, the entire trial court case, including "causation” presumably, was tried before a jury and the reviewing court found no error in this); Chocktoot v Smith49 (the underlying appeal may present mixed questions of law and fact; the judge must decide questions of the law; the jury must decide questions of fact).
In sum, at least twelve of the cases cited as supportive by the majority do not, in fact, directly support the position taken in the case at bar. Indeed, many of these decisions do not even address the issue decided by this Court today. Notably, of the remaining eight decisions that arguably support the majority position, only two are from the state’s highest court.50
I would affirm the decision of the Court of Appeals.
Levin, J., concurred with Brickley, J.Ante at 601.
"[W]hether an appeal . . . would have succeeded ... is an issue for the court because the resolution of the underlying appeal originally would have rested on a decision of law. With rare exception, appeals are based on and resolved as matters of law, not fact.” Ante at 589 (citations omitted). The "rare exception” referenced by the majority is that situation in which an "appellate court is empowered to review the facts of a lower tribunal de novo . . . .” Ante at 589, n 21.
See ante at 589 (" '[T]he basic premise of trying the underlying action is to prove what the result should have been’ ”) (quoting 2 Mallen & Smith, Legal Malpractice (3d ed), § 27.10, p 652).
In the case at bar, the trial judge properly articulated for the jury what law was applicable in the appellate malpractice trial. This guidance was specifically based on standard civil jury instructions for professional negligence claims, SJI2d 30.01 (professional malpractice instructions), for burden of proof and causation determinations, SJI2d 30.03 (burden of proof in professional malpractice), and included a special instruction that damages were not to be duplicated. These instructions were consistent with Michigan case law concerning legal malpractice. See, e.g., Coleman at 63 (elements of professional legal malpractice); see also Babbitt v Bumpus, 73 Mich 331, 337-338; 41 NW 417 (1889). Accordingly, the instructions given were presumptively proper.
Indeed, the following hypothetical situation succinctly illustrates the very point that I am making — namely, that what the law was may be very different from what the law is;
Suppose that the applicable law regarding damages, as it existed at the time the underlying appeal should have been taken, provided that double recovery for a single injury was permissible (Law 1). Now suppose that after the defendant’s failure to appeal, but before trial, the applicable law of damages was changed to expressly prohibit double recovery for a single injury (Law 2). This second law does not apply retroactively. Which law is "applicable” for purposes of the determination of causation?
While Law 2 is what the law presently is, Law 1 is what the law was when an appeal would have been taken. For purposes of this determination of causation, Law 1 applies. The process of articulating Law 1, however, does not create a precedential legal ruling, and is not an "issue of law,” because Law 2 is presently applicable. Rather, this articulation is simply a present assertion of a past fact: i.e., that the applicable rule of law was Law 1.
I also believe that the testimony of expert witnesses would be permissible to aid the jury in making this determination. While I generally agree with the majority that expert witnesses may not testify on a " 'question of . . . law,’ ” ante at 592 (quoting People v Lyons, 93 Mich App 35, 46; 285 NW2d 788 [1979]), expert testimony concerning what the law was simply does not concern or create an "issue of law” but, rather, addresses an issue of fact properly resolved by the jury. In this regard, expert testimony merely helps the jury to pick among conflicting interpretations of fact (i.e., what the law was).
See n 2.
Indeed, as the majority acknowledges, this desire to reach a result —i.e., a determination of "causation” — is the primary purpose for resolving the "suit within a suit.” See ante at 589 (" '[T]he basic premise of trying the underlying action is to prove what the result should have been’ ”) (quoting 2 Mallen & Smith, n 3 supra).
Indeed, this decision-making process is not only sanctioned by the Michigan Constitution, it is also one that illustrates and forms the basis of our entire jury system. As the United States Supreme Court has so ably explained:
It is a basic premise of our jury system that the court state the law to the jury and that the jury applies that law to the facts as the jury finds them. [Delli Paoli v United States, 352 US 232, 242; 77 S Ct 294; 1 L Ed 2d 278 (1957); see also People v Lewis, 6 Mich App 447, 454; 149 NW2d 457 (1967) (quoting Delli Paoli).]
See also Prosser & Keeton, Torts (5th ed), § 45, p 320 ("Two kinds of questions, then, are always to be decided by the jury if reasonable persons could differ about them on the evidence received at trial— first, fact questions in the usual sense and, second, evaluative applications of legal standards ... to the facts.”). (Emphasis added.)
In fact, while the majority neglects in its analysis any discussion concerning this hybrid facet of a "causation” determination, its opinion ironically concedes the very existence of this application process:
Issues of law are resolved by a reasoned application of neutral principles to a particular factual situation. [Ante at 597. Emphasis added.]
See also ante at 600 (the majority argues that "pure application” of neutral principles is necessary to legitimate decision making).
The United States Constitution requires that federal courts only decide actual cases or controversies. US Const, art III, §2. The similarity of Michigan’s "actual controversy” requirement, and the United States Constitution’s "case or controversy” requirement, has been acknowledged by at least one member of this Court. See Girard v Wagenmaker, 437 Mich 231, 266, n 14; 470 NW2d 372 (1991) ("Michigan law embodies a similar requirement of an 'actual controversy’ ”) (Cavanagh, C.J., dissenting).
Of course, the malpractice trial involves such a controversy — i.e., whether professional negligence in fact occurred.
It is interesting to note that, if one of the parties to this case had not appealed the Court of Appeals decision, that opinion would be the law in Michigan and binding upon the trial and appellate benches. Further, if a similar question subsequently came to this Court when those members of the instant Court of Appeals panel, or other like-minded jurists, had perhaps been elected to this bench, the majority view taken today would presumably be rejected. So much for only one "correct” answer.
[A] neutral and principled application of legal authority will result in one principled result. [Ante at 598. Emphasis added.]
The outcome of appellate cases is decided on the basis of predetermined principles of law. There simply is no disputed issue of fact for a jury to decide with respect to how a legal issue would have been decided on appeal. [Ante at 595-596.]
Ante at 595. Admittedly, while the majority refers to "probabilities,” it also denies that a conflict of legal probabilities is ever possible. Accordingly, the majority also concludes that "summary disposition regarding a legal issue is always appropriate because no clash of scientific probabilities exists.” Id.
Ante at 590, quoting Millhouse v Wiesenthal, 775 SW2d 626, 628 (Tex, 1989).
Indeed, not only is our answer in the negative, most experienced trial counsel would purposefully exclude such expertise from the jury panel.
While the concurring opinion notes that "[t]he aim of both civil and criminal litigation is to determine the truth and apply our laws to it,” ante at 609, and admits that "the best we can do is give the evidence and expert advice to a jury and let it decide,” id., it concludes that "[t]his method does not represent the best we can do with cases alleging appellate legal malpractice.” Id. Why not? Because letting a jury decide proximate causation supposedly "is akin to letting a jury decide what a person in the courtroom is thinking. In both instances, a better way to find out would be to ask.” Id. at 610.
Ask whom? I do not dispute that the "better way” to determine what an appellate court will do is to take an appeal — to "ask” the appellate court directly. What the majority fails to realize, however, is that this suggested approach is not just the "better way” to conclusively deduce what an appellate court will do, it is the only way. However, and more importantly, it is also a method that is no longer available to the plaintiff because defendant-attorney failed to properly appeal in the first place. Indeed, this lack of an available appeal — this inability to just "ask” — is what gave rise to the legal malpractice suit.
In the instant action, plaintiff certainly would have liked to "ask” the appellate court what it was going to do with this case. In the context of appellate malpractice, however, this ideal has no foundation in reality — the option of an appeal is simply no longer available.
See p 611.
Moning v Alfono, 400 Mich 425, 440, n 13; 254 NW2d 759 (1977).
Indeed, while this Court’s opinion in Moning, n 21 supra, has been interpreted as viewing "cause in fact” as a lesser included concept of "proximate causation,” see Ignotov v Reiter, 425 Mich 391, 404; 390 NW2d 614 (1986) (Riley, J., dissenting) ("Included within the element of 'proximate cause’ is the requirement that the plaintiff establish cause in fact”), in fact Moning explicitly recognized the unique nature, and resolution, of both causation questions:
*625"PTjt is possible to approach 'proximate cause’ as a series of distinct problems, more or less unrelated, to be determined upon different considerations. The list . . . would include at least the following problems: 1. The problem of causation in fact . . . .” [Moning, supra at 440, n 13 (quoting Prosser, Torts [4th ed], § 42, p 249).]
Ante at 586, n 13 ("'The question of fact as to whether the defendant’s conduct was a cause of the plaintiff’s injury must be separated from the question as to whether the defendant should be legally responsible for the plaintiff’s injury.’ ”) Quoting Richards v Pierce, 162 Mich App 308, 317; 412 NW2d 725 (1987) (emphasis added).
Interestingly, the majority acknowledges that the causation issue raised by defendant "is more appropriately considered an issue of cause in fact . . . .” Ante at 586, n 14 (emphasis added). In short, it is abundantly clear that the majority does not dispute that distinct "cause in fact” issues are implicated in both the case at bar and, presumably, in appellate malpractice cases generally. In fact, the majority admits that the causation issue is one of cause in fact.
Moning, n 21 supra at 440 (quoting Prosser, n 22 supra, § 42, p 244).
Prosser & Keeton, n 9 supra, § 41, p 263, § 42, p 272 (citations omitted).
[Proximate cause] is sometimes said to depend on whether the conduct has been so significant and important a cause that the defendant should be legally responsible. [Prosser & Keeton, n 9 supra, § 42, p 273.]
Coleman, supra at 63.
Prosser & Keeton, n 9 supra, § 41, pp 265-266; Coleman, supra at 63 ("Hence, a plaintiff in a legal malpractice action must show that but for the attorney’s alleged malpractice, he would have been successful in the underlying suit”) (emphasis added); see also Ignotov, n 22 supra at 405 (Riley, J., dissenting) ("Therefore, as part of the plaintiff’s burden of proof to establish liability on behalf of the defendant, the plaintiff had to prove cause in fact, i.e., but for the attorney’s negligence the plaintiff would have retained his parental rights”) (emphasis added).
Black’s Law Dictionary (6th ed), p 221 (definition of "cause in fact”).
McMillan v State Hwy Comm, 426 Mich 46, 51; 393 NW2d 332 (1986), quoting Prosser & Keeton, n 9 supra, § 42, pp 272-274.
Ante at 604-605.
Basie Food Industries v Grant, supra. The Basic Food Court articulated four requirements for a prima facie case of legal malpractice, including the requirement that plaintiff show "that the negligence was the proximate cause of the injury . . . .” Id. at 690.
Circuit court opinion and order, authored by Judge Melinda Morris, in response to defendant’s motion for summary disposition (emphasis added). In fact, during the trial Judge Morris ruled at least four times on the proximate cause issue — each time finding that plaintiff’s complaint was legally sufficient to take the case to a jury.
The majority accurately points out that, in the context of a motion for summary disposition, the trial judge is assigned the task of applying law to fact. I agree. More importantly, I note that this is precisely what the trial judge in this case did when ruling on defendant’s motion, pursuant to MCR 2.116(C)(8) and (C)(10), for summary disposition.
A summary disposition ruling, however, merely shows that a plaintiff has (or has not) properly pleaded facts sufficient to reach the jury (MCR 2.116[C][10]), or pleaded a valid legal claim (MCR 2.116[C][8]). Notably, the denial of a defendant’s motion for summary disposition does not relieve a plaintiff from having to ultimately establish all elements of a professional malpractice action. Were this so, we would not need juries.
Therefore, while the majority is accurate in that a trial judge may make a preliminary determination — in the context of summary disposition — on the causation issue, this conclusion does not change the fact that plaintiff still must prove, to the jury, all four elements necessary for a professional malpractice action. One of these elements, of course, is proximate causation.
A general tenet of the law of damages is the rule of certainty. The rule of certainty requires that proof of damages be based upon factual evidence, not on mere speculation.
See also Coleman, supra at 64 ("[T]his 'suit within a suit’ concept has vitality only in a limited number of situations .... This is so because the purpose of the 'suit-within-a-suit requirement is to insure that the damages claimed to result from the attorney’s negligence are more than mere speculation’ ”) (quoting Charles Reinhart Co v Winiemko, 196 Mich App 110,115; 492 NW2d 505 [1992]).
My review of plaintiif’s complaint does not suggest that plaintiff alleged damages from a lost opportunity to settle pending appeal. Plaintiff’s brief filed with this Court, however; does posit a "lost . . . opportunity to negotiate a favorable settlement with the [third party].” Further, plaintiff’s complaint did allege damages from having to unfavorably settle a claim with a third party (Kauffman) because defendant had failed to take an appeal.
Cf. Pickett, Houlon & Berman v Haislip, 73 Md App 89; 533 A2d 287 (1987) (an attorney malpractice action in which the issue of *631causation concerned the result that the trial court would have reached in the underlying trial; the appellate court held that the determination involved issues both of law and of fact and that jury involvement therefore was appropriate).
Admittedly, the majority does not rely on Selsnick to support its position. Rather, the concurring and dissenting opinion in Selsnick is cited by the majority as indicating that at least one Nevada Supreme Court justice might allow expert testimony regarding the proximate cause issue. Ante at 601, n 40. However, the majority also maintains that no reported decisions support entrusting causation determinations to a jury. I believe that this decision, from the Nevada Supreme Court, does just that.
49 Ill App 3d 332; 364 NE2d 328 (1977).
882 F2d 1277 (CA 7, 1989).
4 Kan App 2d 36; 602 P2d 542 (1979).
568 F Supp 371 (ED La, 1983).
Jenkins v St Paul Fire & Marine Ins Co, 422 So 2d 1109 (La, 1982).
26 Mass App 162; 524 NE2d 1381 (1988). In fact, while the Romano court hypothesized about the issue presented in the instant case:
[a] sound argument can be made that even if the point is the subject of uncertainty, it should, if a pure question of law, be resolved by the court, not by the finder of fact ....
it expressly noted that "[t]he present case [did] not require resolution of that question.” Id. at 170, n 18. Simply, the Romano court expressly disclaimed deciding the issue resolved by this Court today.
76 Ohio App 3d 413; 602 NE2d 340 (1991).
243 Va 169; 413 SE2d 347 (1992).
195 F Supp 93 (ND W Va, 1961).
101 Okla 79; 222 P 974 (1924).
280 Or 567; 571 P2d 1255 (1977).
The first decision is General Accident Fire & Life Assurance Corp v Cosgrove Ltd, 257 Wis 25; 42 NW2d 155 (1950). The Wisconsin Supreme Court simply noted that the sole question to be resolved concerned damages and that, in the context of summary disposition, the issue was one of law.
The second, more recent decision, is Millhouse v Wiesenthal, n 17 supra. Notably, two justices of the Texas Supreme Court dissented from the Millhouse decision. Their dissent, although brief, is persuasive.