(dissenting). This is an action for legal malpractice. Plaintiff Arthur Louis Simko was convicted of possessing over 650 grams of cocaine and sentenced to the mandatory term of life in prison.1 Defendant Marvin Blake represented *662Simko at the trial. His motion for a directed verdict was denied.
The Court of Appeals2 reversed Simko’s conviction finding that there was insufficient evidence that Simko possessed the cocaine found in the vehicle in which he was a passenger. The Court thus implicitly ruled that Blake’s motion in Simko’s behalf for a directed verdict should have been granted.
Although Simko’s conviction was reversed without a new trial, he was imprisoned under a life sentence for more than two years. Simko, his wife, Margaret A. Simko, and his daughter, Tara Marie Simko, commenced this action against Blake alleging errors of omission and commission and failure to observe the standard of care required of a lawyer.
The circuit judge granted Blake’s motion for summary disposition, dismissing the complaint because he concluded that the "proximate cause” of Blake’s conviction was the trial judge’s error in denying Blake’s motion for a directed verdict and the "unreasonable jury” verdict of guilty.
The Court of Appeals acknowledged that "[p]roximate cause in attorney malpractice is a question for the trier of fact,” and "accepted] that a trier of fact could find that it was because Blake did not present additional evidence that Simko spent two years in prison unnecessarily.3 The Court nevertheless affirmed, one judge dissenting, on the basis that Blake had discharged his "duty” to Simko when he "identified correctly the legal inadequacy” of the people’s case and thus had no duty to "be prepared to present additional evidence in *663support of alternative theories just in case the trial court erroneously should deny the motions.”4
The majority, adopting essentially the same analysis, affirms. I would reverse the Court of Appeals and reinstate the complaint because, although stated in terms of "duty,” the majority in this Court
• essentially ignores that Blake’s motion asserted that the requisite causal link5 was absent, and did not seek a redefinition of the duty owing by, or the standard of care required of, a lawyer;
• in effect redefines the standard of care to require of a lawyer less than ordinary learning, judgment, diligence, and skill in the representation of a client;
• in effect invades the province of the trier of fact by finding that "the” only cause/proximate cause of Simko’s injury was the trial judge’s error in denying the motion for directed verdict rather than allowing the trier of fact to determine whether "a” cause was error by Blake;
• indulges in further fact finding in stating that Blake’s "alleged acts and omissions were trial tactics based on good faith and reasonable professional judgment.”6
A physician who operated successfully on a patient, whose malady could have been cured with a pill that a physician of ordinary learning, judg*664ment, diligence or skill would have administered, would be subject to liability for the unnecessary inconvenience, pain, and suffering, even if endured for only a few weeks, and not two years. So, too, should a lawyer be subject to liability if the trier of fact finds that a lawyer of ordinary learning, judgment, diligence, and skill would have advanced alternative theories that would have avoided Simko enduring over two years’ imprisonment.
The Supreme Court of North Dakota ruled in a legal malpractice action, Klem v Greenwood, 450 NW2d 738, 744 (ND, 1990), that "merely because this court reversed Klem’s conviction does not mean that any alleged malpractice caused no damage.” The court said that in holding that the trial court had erred and that Greenwood, Klem’s lawyer, had preserved the issue for appellate review, the court "did not hold, as a matter of law, that Greenwood had met the degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent attorney.” (Emphasis added.)7
i
The majority states:
[Attorneys must only act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.[8]
A
I agree that a lawyer need "only act” as would a *665lawyer of ordinary learning, judgment, diligence, or skill under the same or similar circumstances. But hé must so act. If the majority were to allow this case to come to trial, the evidence were to show, and a trier of fact were to find, that a lawyer of ordinary learning, judgment, diligence, or skill, under the same or similar circumstances, would have avoided errors that Blake allegedly committed, then Blake is, or should be, subject to liability for damage found to have resulted from conviction of an offense subjecting Simko to a sentence of life in prison and actual incarceration for over two years.
In holding as a matter of law that Blake is not subject to liability because it was ultimately determined that he interposed a legally adequate defense even though, had he avoided error, Simko would not have been convicted and served over two years in prison, the majority requires less of Blake than the conduct of a lawyer of "ordinary learning, judgment, or skill under the same or similar circumstances.”
B
The majority also states that "mere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence.”9 (Emphasis added.) It is implicit in the formulation adopted by the majority, requiring a lawyer to act as would a lawyer of "ordinary learning, judgment, or skill,”10 that errors of judgment may constitute negligence. Whether an error of judgment, or a "mere” error of judgment, consti*666tutes negligence depends on whether a lawyer of ordinary learning, judgment, diligence, or skill would have avoided the error or "mere” error of judgment. That "generally” is a question of fact for the trier of fact to decide.
ii
Manifestly, no trial lawyer would long remain solvent if he were required to protect against judicial error or "unreasonable” jury verdicts. It is the experience of most lawyers that they win cases they expect to lose, and lose cases they expect to win.
It is because lawyers cannot safely predict that a trial judge will avoid error or that an appellate court will both recognize and correct an error, that a lawyer of ordinary learning, judgment, diligence, and skill does not — and it is, and should be, legal malpractice to — bet his client’s life on prevailing on one issue that he believes is "legally sufficient to fully vindicate”11 his client’s position, eschewing other viable means of defense.
In Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994), and People v Tims, 449 Mich 83; 534 NW2d 675 (1993), this Court ruled that to be actionable, negligent misconduct need be only "a” cause and need not be "the” cause of the injury. Today the majority announces a special rule for lawyer negligent misconduct, relieving lawyers of liability for failure to advance alternative theories or defenses that should have been advanced to observe the standard of care if it is ultimately determined that, but for judicial or jury error, plaintiffs’ loss would have been avoided.
*667III
Blake’s motion for summary disposition was filed on the basis that the Simkos "failed to state a claim on which relief can be granted.”12 In finding facts on this second appellate review, the majority ignores that only the pleadings may be considered by the circuit court and the appellate courts in ruling on such a motion.
The majority finds, as a matter of fact or law, that the "alleged acts and omissions were trial tactics based on good faith and reasonable professional judgment.”13 The complaint' particularized concerning the errors claimed by Simko.14 In response to the motion for summary disposition, the Simkos filed an affidavit of a lawyer stating that in his opinion Blake had erred. Blake did not file an affidavit in support of the motion for summary disposition, probably because no such support is required or permitted.15 Nevertheless the majority finds, as a matter of fact or law, that Blake acted in good faith and exercised reasonable professional judgment.
The majority finds, as a matter of fact or law, that certain witnesses were not called because Blake "did not feel that they would be beneficial to the defense’s case.”16
Because Blake did not file an affidavit in support of his motion for summary disposition, and, even if he had, it could not properly have been considered in deciding the motion, there is no record support for fact finding by the majority.
Because there is no factual record, the majority *668does not have a basis for asserting that the witnesses were not called because Blake "did not feel that they would be beneficial to defense’s case.”17 Since there is no record, we do not know whether either or both witnesses were interviewed by Blake, and what might have occurred during any such interview. The silent record no more justifies a finding that Blake had a reason for not calling the witnesses, than it would a finding that he simply neglected or overlooked calling them. A silent record supports no finding of fact at all.
IV
The majority states, quoting with approval the opinion of the Court of Appeals:
"To impose a duty on attorneys to do more than that which is legally adequate to fully vindicate a client’s rights would require our legal system, already overburdened, to digest unnecessarily inordinate quantities of additional motions and evidence that, in most cases, will prove to be superfluous.”[18]
If lawyers were omniscient about trial and appellate court rulings that will be forthcoming in a particular case, they would know what motions were unnecessary. If trial judges were omniscient about appellate court rulings, they would rarely err. It is because a lawyer cannot assuredly predict such rulings that an ordinarily careful, prudent, diligent, and skillful lawyer burdens the legal system with motions that, in retrospect, may have been unnecessary.
The Simkos are not complaining that Blake *669failed to paper this case as commonly occurs in high-stakes civil litigation. Indeed, they do not claim that Blake failed to file a motion, "additional” or otherwise. They complain, rather, about his asserted lack of diligence in preparing for trial, and in failing to call witnesses during trial.19
Lowering the standard of care for lawyers will not reduce the burden of over-lawyering by lawyers who fail to recognize their professional responsibility. Lowering the standards will not raise the level of professional responsibility.
v
In Gebhardt v O’Rourke, 444 Mich 535, 554; 510 NW2d 900 (1994), this Court said that "successful postconviction relief is not a prerequisite to the maintenance of a claim for legal malpractice arising out of negligent representation in a criminal matter.” The Court, thus, implicitly said that a legal malpractice action may be maintained against a lawyer who represented a plaintiff in a criminal matter without establishing that he rendered "ineffective assistance.”20
Simko is at least entitled to maintain this damage action for legal malpractice if he can establish that Blake failed to render effective assistance within the meaning of the "ineffective assistance” standard.21 The majority should at least remand to *670the circuit court for determination of the effective assistance issue.22
We would reverse the Court of Appeals and remand for determination under the standard of care heretofore applicable in actions asserting legal malpractice in the conduct of criminal as well as civil cases.
Brickley, C.J., concurred with Levin, J. Weaver, J., took no part in the decision of this case.MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
He was also convicted of possession of a firearm in the commission or attempt to commit a felony. MCL 750.227b; MSA 28.424(2).
Unpublished opinion per curiam, issued November 29, 1989 (Docket No. 105873).
201 Mich App 191, 193; 506 NW2d 258 (1993).
Id., p 194.
Blake moved for summary disposition on the basis that the Simkos "failed to state a claim on which relief can be granted” MCR 2.116(C)(8) because "the proximate cause of [Blake’s] convictions was the trial court’s error in denying the Motion for a Directed Verdict of not guilty.”
Ante, p 650.
The court observed that Klem had alleged "acts of malpractice, including, but not limited to, the failure to adequately cross-examine a complaining witness.”
8 Ante, p 650.
Ante, p 658.
Ante, p 650, quoted in text accompanying n 8.
Ante, p 650.
MCR 2.116(C)(8).
Ante, p 650.
The particularized claims are summarized in the majority opinion, p 652, n 2.
MCR 2.116(G)(5).
Ante, p 659.
Id.
18 Id., p 657, quoting Simko v Blake, supra, p 194.
Ante, p 652, n 2.
See People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
Simko sought reversal in the Court of Appeals not only on the basis of insufficiency of the evidence but also on the basis that he was denied the effective assistance of counsel. Because the Court of Appeals reversed his conviction on the basis that there was insufficient evidence, it did not reach the question whether he was denied the effective assistance of counsel. Simko thus did not obtain a ruling from the Court of Appeals on his claim that he was denied the effective assistance of counsel.
In Gebhardt, supra at 548, n 13, this Court said:
We do not accept the "no relief-no harm” rule because it is a legal fiction with serious analytical flaws.13
13 Rather than being a legal definition of harm, the rule is a legal fiction that divorces the law from reality. "[P]ersons convicted of a crime will be astonished to learn that, even if their lawyers’ negligence resulted in their being wrongly convicted and imprisoned, they were not harmed when they were wrongly convicted and imprisoned but, rather, that they are harmed only if and when they are exonerated.”
The Court also said at 552:
However, as the Court in Luick [v Rademacher, 129 Mich App 803; 342 NW2d 617 (1983)] at 807, n 1, noted, Parisi [v Michigan Twps Ass’n, 123 Mich App 512; 332 NW2d 587 (1983)] "does not provide an answer to the question now before us. . . . In this case, a cause of action for malpractice could well exist regardless of the outcome of post-judgment proceedings in the underlying case.”