(dissenting). It started with Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928), a case read by every first-year law student.1 Palsgraf is one of those cases that bring an issue into sharp focus. Everyone knows of Mrs. Palsgraf, who was standing at a distance from where a passenger, assisted by two employees of the railroad, was boarding a train. Id. at 99. The employee accidentally knocked a package from the passenger's hand. Id. The package, which turned out to contain fireworks, fell to the tracks below and exploded. Id. The explosion knocked over some scales, which struck and injured Mrs. Palsgraf. Id.
¶ 78. Justice Cardozo, writing for the majority, concluded that Mrs. Palsgraf couldn't recover from the railroad company because it was not negligent as to Mrs. Palsgraf. Id. Justice Andrews, in his dissent, *771concluded that the issue was whether the accident was proximately caused by the employee. Id. at 102. He concluded that it was, and would have permitted Mrs. Palsgraf to recover from the railroad. Id. at 105.
¶ 79. Palsgraf was a hard case, because, while most people would agree that liability should end somewhere, the explanation for the stopping place was unclear. Justice Cardozo and Justice Andrews had two different methods of describing the place where liability stopped. And each state would have to decide how to deal with difficult cases where negligence or an intentional tort existed, but the connection between the plaintiff and the defendant was tenuous.
¶ 80. Wisconsin entered the picture a few years later with Osborne v. Montgomery, 203 Wis. 223, 234 N.W 372 (1931). The court recognized the problem of dealing with this area when it said: "In a consideration of this subject it is easy to get lost in a maze of metaphysical distinctions, or perhaps it may better be said it is difficult not to be so lost." Id. at 231. The court concluded: "Any rule which operates to limit liability for a wrongful act must be derived from judicial policy and its limits cannot be defined by any formula capable of automatic application but which must rest in the sound discretion of the court." Id. at 237. After some backtracking, this rule was solidified in Pfeifer v. Standard Gateway Theater, Inc., 262 Wis. 229, 55 N.W.2d 29 (1952). In Pfeifer, the court reasserted its holding in Osborne, noting:
It would seem to be preferable to submit these hard cases to the jury in so far as determining the issues of negligence and causation in the same manner as in the ordinary case. If the jury does determine that there was negligence, and that such negligence was a substantial factor in producing the injury, it is then for the court to *772decide as a matter of law whether or not considerations of public policy require that there be no liability. As previously pointed out, this latter solution is the one advanced in Osborne v. Montgomery, supra, and we adhere thereto. It is also in accord with the views expressed by Professor Campbell in his article in 1938 Wisconsin Law Review, 402, and with Restatement, 2 Torts (1948 Supp.), p. 739, sec. 435, 2, comment e, thereunder.
Pfeifer, 262 Wis. at 240.
¶ 81. Professor Richard Campbell has had a profound influence on the way the Wisconsin Supreme Court has viewed torts, and in particular, the proper method of analyzing issues of duty, causation, damages and of policy factors which preclude liability. His various articles in the Wisconsin Law Review and elsewhere have been cited favorably by the court on twenty-one occasions. In 1938, Professor Campbell examined the use of the term "proximate cause," and the problems inherent in the use of that term. Richard V. Campbell, Duty, Fault and Legal Cause, 1938 Wis. L. Rev. 402 (1938). He observed that the use of that term has been confusing, because it described two very different concepts:
The term "proximate cause" has been commonly used to describe limitations on liability and on the extent of liability based on (1) lack of causal connection in fact, and (2) policy factors making it unfair to hold the party. Experience has demonstrated that the name was an unfortunate selection. Its use has tended to confuse the issues in much the same way that the phrase "res ipsa loquitur" has hampered the normal use of presumptions and circumstantial evidence in the proof of negligence. The word "proximate" has unduly emphasized one out of a variety of factors. Associating it with the word "cause" has tended to confuse two *773distinct issues. In an article in 1912, Professor Jeremiah Smith suggested the use of the term "substantial factor".... This dissatisfaction with "proximate cause" may produce a more expressive terminology and possibly a more logical procedure. But it must be remembered that fundamental questions are not usually solved by words. Any word or set of words will work if their meaning is a matter of common knowledge.
Id. at 403.
¶ 82. In 1941, Professor Campbell noted that Wisconsin had developed two lines of authority that were fundamentally inconsistent in their administration of rules of proximate cause. See Richard V Campbell, Torts, 1941 Wis. L. Rev. 110, 113 (1941). By 1962, Professor Campbell had concluded that:
It is now clear that we are administering two distinct issues under the label "proximate cause.". One is the issue of cause in fact. This issue is for the jury, subject to the usual controls by the judge in passing on the sufficiency of the evidence. The other issue is purely one of the policy of the law. It is exclusively for the judge. It is not clear how to describe these completely separate issues by the use of this single term. The matter is further complicated by the past associations which surround it.
Richard V Campbell, Wisconsin Law Governing Automobile Accidents — Part I, 1962 Wis. L. Rev. 240, 266-67 (1962).
¶ 83. In sum, Professor Campbell believed that "[t]he term 'proximate cause' has outlived its usefulness" and recommended an appropriate course of action: "Various legal terms have been selected for the firing squad. I nominate 'proximate cause.'" Id.
¶ 84. In 1969, Professor Campbell presented a series of four lectures on tort law in Wisconsin. The
*774lectures were compiled in Richard V Campbell, Recent Developments of Tort Law in Wisconsin (1969). By this time, Professor Campbell had concluded that the proper term for cause in fact, as used in the popular sense, was "substantial factor." It was therefore immaterial how unnatural the result is if, in fact, the negligence was a substantial factor in causing the injury. In discussing policy or "X" factors, Professor Campbell wrote:
Delimiting policy factor principles have been the source of considerable confusion in tort law. Much of this has been corrected in recent years since we have sharply distinguished issues of cause in fact and delimiting policy factors. The Pfeifer case set the standard for Wisconsin. This issue is exclusively for the court and the test is whether it will shock the conscience of society to hold the defendant. In explaining the Pfeifer approach, in 1962, in Longberg v. H. L. Green Co., 15 Wis.2d 505, 113 N.W.2d 129, 114 N.W.2d 435 (1962), our court said "The public-policy determination of Pfeifer, Klassa, and Colla seems to us a more realistic description of what a court does when it declines to impose liability in these situations than the no-duty formula of Palsgraf and Waube."
We have settled our approach to the issue. Of course, this does not automatically solve all of the cases. It does, nevertheless, prevent us from making mistakes in cases which are mine-run on this question. This means 99% or more of our total negligence litigation ....
This still leaves the hard cases. We should not disregard earlier authorities simply because they were decided before 1952, the date of the Pfeifer decision. Although the Restatement of Torts analysis of this subject differs substantially from that in Wisconsin, it does not mean we should disregard the Restatement in *775answering individual cases. The value of material in the Torts Restatement is illustrated by the decisions of Diener v. Heritage Mutual Insurance Co., 37 Wis.2d 411, 155 N.W.2d 37 (1967) and Johnson v. Chemical Supply Co., 38 Wis.2d 194, 156 N.W.2d 455 (1968). In each instance the analysis resulted in recovery by the plaintiff.
Id. at 54-55 (emphasis added).
¶ 85. In conclusion, Professor Campbell noted:
It is my opinion that tort law today in Wisconsin is on a more sound basis than tort law in any other state in the United States .... [A] s I study tort decisions, I am constantly amazed and appalled at what I find around the country. It is easy to understand why some people in some parts of the United States feel that any change is bound to be an improvement.
. .. [B]y and large, I am convinced that our supreme court has done an excellent job in molding the common law of torts in this state.
Id. at 121-22.
¶ 86. The genius of Professor Campbell's view of torts is its simplicity. This view makes tort law as easy as A, B, C, D and X. A is duty, B is breach, C is cause in fact, D is damages and X is policy factors. In Wisconsin, everyone owes a duty to all others to refrain from any act which will cause foreseeable harm to others. Dixson v. Wisconsin Health Org. Ins. Corp., 2000 WI 95, ¶ 22, 237 Wis. 2d 149, 612 N.W.2.d 721 (2000). The breach of a duty constitutes negligence. Ramsden v. Farm Credit Serv. of N. Cent. Wis., 223 Wis. 2d 704, 714, 590 N.W.2d 1 (Ct. App. 1998). A cause is any "substantial factor" that produces the injury. Pfeifer, 262 Wis. at 273. Damages are pecuniary compensation for loss or injury. Wisconsin Pub. Serv. Corp. v. Heritage Mut. Ins. Co., *776200 Wis. 2d 821, 831, 548 N.W.2d 544 (Ct. App. 1996). If these factors are determined in favor of a plaintiff, most cases end here, with a judgment for the plaintiff. In the hard cases, judges determine whether policy factors will prevent liability notwithstanding a plaintiffs success in proving negligence, causation and damages. What makes this analysis easy and workable is that judges analyzing policy factors do so on a case-by-case basis. There is no "one size fits all" rule which would lead to unfortunate results and exceptions upon exceptions in individual cases. This "case-by-case" rule is universally used, and is firmly entrenched in Wisconsin case law. See Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 650-51, 517 N.W.2d 432 (1994); Garrett v. City of New Berlin, 122 Wis. 2d 223, 242, 362 N.W.2d 137 (1985); Alwin v. State Farm Fire & Cas. Co., 2000 WI App 92, ¶ 12, 234 Wis. 2d 441, 610 N.W.2d 218; Sussex Tool & Supply v. Mainline Sewer & Water, Inc., 231 Wis. 2d 404, 418, 605 N.W.2d 620 (Ct. App. 1999).
¶ 87. This view clearly differentiates between the factual issues to be determined by a jury and the policy issues to be decided by judges. Other states, particularly those which continue to struggle with "proximate cause" and its multiple meanings, are not so lucky. While we see discussions in other states' appellate opinions of policy issues which operate to delimit recovery, use of the term "proximate cause" can place policy decisions in the hands of a jury. In Professor Campbell's view, and in mine, that is an unfortunate way of determining the public policy of any state.
¶ 88. How would Professor Campbell view Wisconsin's tort law analysis were he here to examine it today? Probably not as optimistically as he did in 1969, though most of the time, Wisconsin courts follow analy-ses that do not clash with his core teachings. While the *777term "proximate cause" has not been put to the firing squad, those unfortunate words have been described as "abandoned." The court did so in Blashaski v. Classified Risk Insurance Corp., 48 Wis. 2d 169, 174-75, 179 N.W.2d 924 (1970):
The doctrine of proximate cause in the strict sense of that term has been abandoned for the substantial-factor concept of causation to properly express "legal cause" or "cause." Osborne v. Montgomery (1931), 203 Wis. 223, 236, 234 N. W. 372; Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W 2d 29.
¶ 89. This comment was repeated in Sampson v. Laskin, 66 Wis. 2d 318, 325, 224 N.W.2d 594 (1975); Miles v. Ace Van Lines & Movers, Inc., 72 Wis. 2d 538, 542, 241 N.W.2d 186 (1976); and Rixmann v. Somerset Public Schools, 83 Wis. 2d 571, 585, 266 N.W.2d 326 (1978). And in Sorensen v. Jarvis, 119 Wis. 2d 627, 641, 350 N.W.2d 108 (1984), the court referred to "the outmoded concept of proximate cause." More recently, the court of appeals noted that "proximate cause" had been abandoned in Pfeifer. See Eckes v. Keith, 143 Wis. 2d 209, 211, 420 N.W.2d 417 (Ct. App. 1988); see also Young v. Professionals Ins. Co., 154 Wis. 2d 742, 749, 454 N.W.2d 24. (Ct. App. 1990).
¶ 90. However, notwithstanding the court's rejection of "proximate cause" in Wisconsin, the phrase has had a considerable life of its own. Professor Campbell's observation that those words describe two distinct issues, resulting in confusion as to which meaning is meant, is dramatically shown in the cases that use this term. A search of about half of the 344 published cases which use the phrase "proximate cause" reveals that in the most benign use of "proximate cause," courts are using the phrase as a synonym for the policy or "X" *778factors that courts may use to negate liability after a jury concludes that a defendant breached a duty, causing damages to a plaintiff.2 See Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 575, 335 N.W.2d 834 (1985) (only limitations on liability are those of "proximate cause" or public policy considerations); Sanem v. Home Ins. Co., 119 Wis. 2d 530, 538, 350 N.W.2d 89 (1984) ("proximate cause" involves public policy considerations and is a question of law); Widell v. Tollefson, 158 Wis. 2d 674, 682, 462 N.W.2d 910 (Ct. App. 1990) (determination of "proximate cause" through evaluation of public policy considerations is a question of law); Reiman Associates, Inc. v. R/A Advertising, Inc., 102 Wis. 2d 305, 321 n.11, 306 N.W.2d 292 (Ct. App. 1981) ("proximate cause" equivalent of policy considerations).
¶ 91. However, even a relatively benign use of "proximate cause" as a synonym for "X" or policy factors is confusing. Several of the six examples of policy factors Wisconsin has identified have no relationship to "cause" or proximateness. In Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 264-65, 580 N.W.2d 233 (1998), the court examined these factors:
(1) The injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tort-feasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden on the negligent tort-feasor; or (5) because allowance of recovery would be too likely to open the *779way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.
¶ 92. The first factor, an injury that is too remote from the negligence, is the factor Justice Andrews used in his dissent in Palsgraf to limit recovery, though he concluded that it did not apply in that case. But it is difficult to explain why the phrase "proximate cause" would identify the concept of a recovery being too likely to open the way for fraudulent claims or that allowance of recovery would enter a field that has no sensible or just stopping point. While "proximate cause" reasonably describes remoteness from negligence, it is only confusing when using it to describe some of the other factors Wisconsin uses to limit liability.
¶ 93. There is no reason why the concept of policy reasons negating liability as a matter of law cannot be described by almost any word or phrase. But it is unfortunate that we have at times used the phrase "proximate cause" to describe this concept because the word "cause" is the same word used earlier in our torts analysis. "Proximate cause" can be and is confused with the words "cause" or "cause in fact," words used to describe a relationship that a jury is directed to consider when determining whether an actor is negligent. This is the reason Professor Campbell suggested that "proximate cause" was a term that has "outlived its usefulness" and should be selected for the firing squad. I agree.
¶ 94. But the situation is far worse than the use of an unfortunate term to describe a concept. A significant number of cases using the phrase "proximate cause" use it not to describe the concept of policy factors which negate liability, but to incorrectly equate proximate cause with a number of other concepts. For instance, in *780City of Milwaukee v. Allied Smelting Corp., 117 Wis. 2d 377, 387, 344 N.W.2d 523 (Ct. App. 1983), we wrote: "[W]e hold that the trial court was correct in attributing negligence and proximate cause to Allied." It is apparent that in City of Milwaukee, we confused "proximate cause" with cause in fact. A court does not "attribute" proximate cause to a litigant. Instead, a court concludes that for policy reasons, a plaintiff cannot prevail. And in Jones v. Dane County, 195 Wis. 2d 892, 537 N.W.2d 74 (Ct. App. 1995), the dissent concluded: "That court prescribed an instruction on proximate or legal cause which rejected the use of the term 'proximate cause' in favor of 'substantial factor.'" Id. at 966 (Sundby, J., dissenting). This is contrary to what the supreme court had done in Osborne and Pfeifer. As the cases I have cited explain, these two terms are not synonymous, but describe two different concepts, one of which is decided by judges, and the other by juries.
¶ 95. In Smith v. State Farm Fire & Casualty Co., 192 Wis. 2d 322, 333, 531 N.W.2d 376 (Ct. App. 1995), we said that a causal connection was not of the type "which would ordinarily be necessary to warrant a finding of 'proximate cause' or 'substantial factor' as those terms are used in imposing liability." But "proximate cause," if used to describe "X" or policy factors, does not impose liability, it prevents liability. We confused "proximate cause" with "cause" or "cause in fact" in Smith. In Cook v. Continental Casualty Co., 180 Wis. 2d 237, 249, 509 N.W.2d 100 (Ct. App. 1993), we said: "Upon remand, Cook must prove not only that Hupy was negligent, but that the negligence was the proximate cause of the injury. . .." Assuming that we used "proximate cause" to mean policy or "X" factors, "proximate cause" is not something a plaintiff must *781prove, but a limiting factor on a plaintiffs recovery. Again, we confused "proximate cause" with "cause."
¶ 96. The problem is sometimes brought about when the context of the case is unusual. An example of this is State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977), a criminal case which nonetheless dealt with negligence. The court concluded: "The question is whether the defendant's acts were a proximate cause of the victim's injuries. That is a question for the jury." Id. at 434. But "proximate cause," even if used in its most benign form as a synonym for policy or "X" factors, is a matter for a court to decide. We do not let a jury decide policy factors. This problem has occurred in a civil case, Johnson v. Heintz, 73 Wis. 2d 286, 303, 243 N.W.2d 815 (1976): "Such negligence could also have been found by the jury to thus be a proximate cause of the second impact of the Heintz vehicle . . . ."
¶ 97. To confuse the matter further, "legal cause" is sometimes substituted for "proximate cause." Bowen, 183 Wis. 2d at 654. And "legal cause" is sometimes used to describe a combination of factors, one of which is a jury question and the other a matter for the court. "In negligence cases, legal cause consists of two parts: cause-in-fact and "proximate cause." McMahon v. St. Croix Falls Sch. Dist., 228 Wis. 2d 215, 223, 596 N.W.2d 875 (Ct. App. 1999). This is despite "legal cause" being used as a synonym for "proximate cause." We used "legal cause" to mean "cause in fact" in State v. Benzel, 220 Wis. 2d 588, 592, 583 N.W.2d 434 (Ct. App. 1998): "It follows that an offense created by an unconstitutional statute is no longer a crime and a conviction under such a statute cannot be a legal cause for imprisonment." See also Clark v. Leisure Vehicles, Inc., 96 Wis. 2d 607, 619, 292 N.W.2d 630 (1980) ("If the actor's negligent conduct is a substantial factor in *782bringing about the harm it is a legal cause of that harm.") (internal quotations omitted); Barrons v. J.H. Findorff & Sons, Inc., 89 Wis. 2d 444, 459, 278 N.W.2d 827 (1979) ("This court, in reaffirming the substantial-factor test in determining legal cause,....") (internal quotations omitted); Johnson v. Misericordia Comty. Hosp., 97 Wis. 2d 521, 560, 294 N.W.2d 501 (Ct. App. 1980).
¶ 98. These cases are by no means the only cases in which the term "proximate cause" and "legal cause" have caused confusion, or are used to describe something other than policy factors which delimit liability. Indeed, they are the tip of the iceberg. In the time allocated to a dissent, I have only been able to consider about half of the 344 cases found by electronically searching for "proximate cause," and half of the 110 cases found by electronically searching for "legal cause."3 Many of these cases use the unfortunate phrase "proximate cause" incorrectly or in an ambiguous way. Despite the supreme court's negative comments about the phrase "proximate cause," it shows no sign of disappearing from our legal lexicon.
¶ 99. I attribute this problem to several things. First, the phrase, "proximate cause" has a nice ring to it, and we lawyers enjoy using it. It sounds lawyerly. The phrase has also been used by the legislature. See, for instance, Wis. Stat. § 895.44 (1999-2000) (exception to statutory immunity if negligence of state officer was "proximate cause" of injury or death). Finally, we have *783all studied Palsgraf, and using the term "proximate cause" still connotes to many of us the concept that "cause" or "cause in fact" is not enough for liability to exist. And while that is true, at least in the benign use of the term, the use of the term "proximate cause" needlessly adds confusion to Professor Campbell's amazingly simple and accurate method of analyzing torts in Wisconsin.
¶ 100. And how does this affect my view of the majority's opinion? Using Professor Campbell's analysis, I agree with the majority that Attorney Nunnery had a duty to represent Hicks competently. And I agree that the jury could find that he breached that duty. Both the majority and I agree that the jury could find that this breach of duty caused Hicks significant damages. But then the majority and I part company. The majority, instead of analyzing policy or "X" factors, examines cases from Massachusetts, California and New York which conclude that a plaintiff in a "criminal malpractice" case must, in every instance, prove his actual innocence of the crime. Majority at ¶¶ 38-43. To its credit, the majority has excised the phrase "proximate cause" from its decision. But its analysis is global, ignoring the rule set out in Alwin, Sussex Tool, Bowen and Garrett. Thus, the first way in which the majority deviates from the way that Wisconsin analyzes tort cases is its failure to analyze Hicks's case on its facts, or as Wisconsin cases require, on a "case-by-case" basis.
¶ 101. The second way the majority deviates from Wisconsin tort analysis is by adopting reasoning from other states without considering how these states construct their tort law, and how consistent those states' analyses are with Wisconsin's unique methodology. Thus, we need to examine not only Wiley v. County of San Diego, 966 P.2d 983 (Cal. 1998), but why the *784California Supreme Court analyzed Wiley as it did, under California's view of its tort law. When we do so, we discover that although California appellate courts are not totally consistent, they have adopted the majority approach in Palsgraf, and use duty to the injured plaintiff as a method of limiting liability to foreseen consequences. See Hegyes v. Unjian, 286 Cal. Rptr. 85, 101-02 (Cal. Ct. App. 1992). This analysis was long ago explicitly rejected in Wisconsin. California does use public policy to limit recoveiy. The primary factor is foreseeability, but certainty of harm, closeness of connection between negligence and harm, moral blame, prevention of future harm, burden on defendant and consequences to community are also used. Ma v. City & County of San Francisco, 115 Cal. Rptr. 2d 544, 555 (2002).
¶ 102. In Wisconsin, foreseeability is not a policy factor, but a part of our broad definition of duty. Olson v. Ratzel, 89 Wis. 2d 227, 251, 278 N.W.2d 238 (Ct. App. 1979). Duty is the obligation of any person to refrain from any act that will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest are unknown at the time of the act. Rockweit v. Senecal, 197 Wis. 2d 409, 419-20, 541 N.W.2d 742 (1995). In this respect, Wisconsin represents the minority viewpoint in Palsgraf. Rockweit, 197 Wis. 2d at 420. It is not surprising, therefore, that California, which follows the majority viewpoint in Palsgraf, would conclude that in all cases, and as a matter of law, plaintiffs in "criminal malpractice" cases would need to prove actual innocence. Wisconsin's broad concept of duty, which does not include policy considerations, leads to a different result: Nunnery was clearly liable to Hicks. The only question *785in Wisconsin should be whether policy considerations, applied on a case-by-case basis, should relieve Nunnery of liability.
¶ 103. The majority explains that it is also influenced by Glenn v. Aiken, 569 N.E.2d 783 (Mass. 1991). Majority at ¶ 38. But Massachusetts, though its tort methodology is fragmented, certainly does not follow the Wisconsin rule. Massachusetts, like California, mostly follows the majority analysis in Palsgraf, always citing it favorably. See, e.g., Nycal Corp. v. KPMG Peat Marwick, LLP, 688 N.E.2d 1368, 1370 (Mass. 1989). In deciding whether a duty exists, Massachusetts courts look to "existing social values and customs, as well as to appropriate social policy." Davis v. Westwood Group, 652 N.E.2d 567, 569 (Mass. 1995). Or, as in Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989), the court concluded that the defendant owed the plaintiff a duty, but public policy barred the court from concluding that the duty was breached. And in Poskus v. Lombardo's of Randolph, Inc., 670 N.E.2d 383 (Mass. 1996), the court intertwined duty and cause, concluding that a defendant did not cause an injury as a matter of law because the injury was not reasonably foreseeable. This is sometimes called "proximate cause," though not consistently. See Westerback v. Harold F. LeClair Co., 735 N.E.2d 1256, 1258 (Mass. Ct. App. 2000). So, whether Massachusetts puts public policy considerations into duty or into cause, or both, it certainly does not use the broad definition of duty that governs Wisconsin cases. I am not surprised, therefore, that in Massachusetts, a rule applicable to all "criminal malpractice" cases is used.
¶ 104. The majority also considers Carmel v. Lunney, 511 N.E.2d 1126 (N.Y. 1987), to be persuasive. Majority at ¶ 43 n.10. But, as we have seen, New York *786is the birthplace of Palsgraf, and Justice Cardozo's majority opinion in which he concluded that a tortfea-sor did not owe a duty to the plaintiff because the plaintiff was outside the zone of risk. This is still the rule in New York. See Lauer v. City of New York, 733 N.E.2d 184, 193 (N.Y. 2000). Wisconsin has specifically rejected New York's tort law methodology.
¶ 105. In all these cases, the courts were concerned that guilty persons might be able to recover from negligent attorneys if a broad rule requiring actual innocence were not adopted. Though the majority here subdivides this reasoning into five sub-reasons, the cases the majority relies upon are almost totally based on a concern that a guilty person might be able to recover damages. If that's all there is to support the majority's conclusion that all persons who are imprisoned because of their attorneys' negligence must show actual innocence, Wisconsin's method of examining tort cases on an individual or case-by-case basis solves that problem easily. There is no reason to adopt a one-size-fits-all rule, when Wisconsin's simple but sophisticated analysis lets courts tailor the appropriate result to the facts of the case.
¶ 106. How does Wisconsin's methodology apply to Hicks's case? I believe that the majority and I both agree that the jury could have reasonably found that Nunnery's negligence caused Hicks's damages. However, I would consider "X" factors and view Hicks's case as one somewhere between two other cases — Feleipe Harris's case, Harris v. Bowe, 178 Wis. 2d 862, 505 N.W.2d 159 (Ct. App. 1993), and the case of Christopher Ochoa, a case significantly reported in local media. Feleipe Harris told Milwaukee police that he had kicked a person "in his butt, in his back and in his chest." Id. at 864. He then confessed that he stomped on the person's *787leg, hip and collarbone areas. Id. He described the person as just lying there with his eyes open — "he didn't look good." Id. After being convicted of first-degree reckless homicide on his guilty plea, Harris appealed. Id. at 866. His appellate attorney filed a no merit report, and we affirmed, concluding that any further appellate proceedings would be frivolous. Id. Harris then sued his attorney for malpractice. Id.
¶ 107. Though Harris might have been able to show that his attorney was causally negligent and that this damaged him, I would conclude that he was not entitled to recover because allowance of recovery under these facts would be too likely to open the way for fraudulent claims. This is the fifth of six non-exclusive public-policy reasons Wisconsin uses to preclude liability in individual cases. See Miller, 219 Wis. 2d at 264-65. Or, I might conclude that in this case, the danger of a guilty person recovering damages was too great, and that as a matter of public policy, Harris could not recover.
¶ 108. On the other end of the spectrum is Christopher Ochoa's case. Ochoa was convicted of murder and rape arising out of a single incident. Tom Kertscher, Liberty and Justice at Last, Milw. J. Sent., Jan. 17, 2001, at 1A. After spending a significant time in prison, Ochoa learned by accident that someone else had confessed to the murder and rape. Anita Clark, Group Rides to the Rescue, Wis. St. J., Jan. 14, 2001, at A1. DNA tests showed that Ochoa could not have committed the rape. Id. The trial court granted Ochoa's motion to be released from prison. Kertscher, supra, at 1A. In Ochoa's case, I would conclude that in a subsequent "criminal malpractice" case, if a jury found that Ochoa's attorney's negligence caused Ochoa to be convicted, *788public policy reasons would not prevent him from recovering from his attorney.
¶ 109. In neither Harris's nor Ochoa's case would I have required the criminal defendant to prove actual innocence before he could recover. Doing so would certainly prevent Harris from recovering, but would be an added and unneeded obstacle that might prevent Ochoa's recovery. To me, using policy considerations in each case individually, the proper Wisconsin tort analysis, ensures the appropriate result in both Harris's and Ochoa's cases.
¶ 110. The majority is uncomfortable with this analysis, preferring to force all plaintiffs in criminal malpractice cases to prove actual innocence. The result of this approach will weed out frivolous plaintiffs cases such as Harris's, but at the cost of sometimes weeding out deserving plaintiffs who should recover from their negligent attorneys. The majority's discomfort with judges deciding policy issues should have been settled long ago. Judges have been permitting or denying recovery for policy reasons since Pfeifer, in 1952. Actual innocence is as much a fact as the distance between Mrs. Palsgraf and the exploding fireworks. Yet there is no question that in Wisconsin, we would analyze her case using the policy factors first suggested by Professor Campbell. While that might cause discomfort to potential plaintiffs as well as to the majority, that is the methodology we have successfully used for fifty years.
¶ 111. Where does Hicks's case fit between Harris's case and Ochoa's case? It is not as strong as Ochoa's but much stronger than Harris's. DNA evidence strongly suggests that Hicks was not the perpetrator of the sexual assault for which he was convicted. The evidence is good but not perfect. I conclude that *789Hicks is unlikely to be a guilty person attempting to recover a judgment against his attorney.
¶ 112. The majority also suggests that a criminal defendant ought to be satisfied because he or she may be able to prevail in criminal court because his or her counsel was ineffective. I view this as little better than nothing. Telling Hicks that he should be happy with his release because he only spent four years in prison rather than nineteen does not sound like justice to me.
¶ 113. Were I writing a majority opinion, I would follow the methodology that Professor Campbell initiated and Wisconsin has adopted. I would conclude that Nunnery had a duty to represent Hicks competently. I would conclude that the jury was entitled to find that Nunnery breached that duty, and that the breach caused damages to Hicks. And I would conclude that none of the policy factors found in Miller, 219 Wis. 2d at 264-65, and no other public policy reason required that Hicks's complaint against Nunnery should be dismissed. Thus, unlike the majority, I would affirm Hicks's judgment against Nunnery. That is why I respectfully dissent.
The crux of this dissent is that the majority has failed to properly apply Wisconsin's long-standing, unique tort methodology in considering whether public policy dictates that Hicks prove actual innocence at trial. As a result, I believe it is necessary to trace the development of that law in Wisconsin in order to fully explain where the majority went wrong and why it is inappropriate to follow a rule applied in other states that approach tort law in ways that are alien to Wisconsin.
There are more than 344 cases using the phrase "proximate cause." But the search data included only cases decided from 1939 to date.
The term "legal cause" is also used by the legislature to mean something other than policy or "X" factors. See Wis. Stat. §§ 973.15(8)(a)l and 118.16(l)(c) (1999-2000). The Restatement (Second) of Torts § 822 (1977) uses "legal cause" to describe cause in fact in nuisance cases. This adds confusion to Wisconsin tort law.