The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§41.3 Burden of Criminal Defendant as Plaintiff

The Case: Gibson v. Trant , 58 S.W.3d 103 (Tenn. 2001).

The Basic Facts: Plaintiff hired Defendant attorneys to represent him when he was arrested and charged on drug-related charges. After his attorney's convinced him to plead guilty and received a lengthy sentence, Plaintiff filed a malpractice action against Defendants. Plaintiff subsequently, and unsuccessfully, attempted to have his plea vacated.

The Bottom Line:

  • "We begin our analysis by listing the elements of a malpractice claim. In order to make out a prima facie legal malpractice claim, the plaintiff must show (1) that the accused attorney owed a duty to the plaintiff, (2) that the attorney breached that duty, (3) that the plaintiff suffered damages, (4) that the breach was the cause in fact of the plaintiff's damages, and (5) that the attorney's negligence was the proximate, or legal, cause of the plaintiff's damages. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813 S.W.2d 400, 403 (Tenn. 1991); Horton v. Hughes, 971 S.W.2d 957, 959 (Tenn. Ct. App. 1998). As with any tort claim, the plaintiff has the burden of proving each of these elements. One way of framing the question presented in this case is whether the tort of legal malpractice requires any additional elements if the plaintiff is a criminal defendant who is suing the lawyer who represented him in the criminal case. Specifically, must a plaintiff prove - in addition to the five basic elements - that he obtained relief in a final post-conviction judgment? For a number of compelling reasons, we hold that a plaintiff in what courts often call a 'criminal malpractice' action must prove this additional element." 58 S.W.3d at 108.
  • "As we have already explained, a criminal defendant who believes he has been wrongly convicted should seek redress through the post-conviction process, not through a legal malpractice action. Collateral estoppel provides that once he does seek such relief, and it is denied, he cannot thereafter bring a civil claim based on the same allegations brought before the post-conviction court. It seems to us that the first conclusion leads ineluctably to the second. If the criminal courts are the mechanisms our society relies upon to provide relief to wrongly-convicted defendants, it should not be that civil courts may ignore the results of the post-conviction process once it has concluded." Id. at 115.
  • "Based on principles of equity, tort law, post-conviction law, and public policy, we hold that a criminal defendant must obtain post-conviction relief in order to maintain a legal malpractice claim against his defense lawyer. Since Gibson did not prevail in his post-conviction proceeding, we affirm the decision of the Court of Appeals, which affirmed the trial court's grant of summary judgment in favor of Trant and Cunningham." Id. at 116.

Recent Cases: Matthews v. Lawson , No. M2007-025069-COA-R3-CV, 2008 WL 3068110 (Tenn. Ct. App. Aug. 1, 2008) (upholding dismissal of legal malpractice claim against public defender because plaintiff failed to allege that he obtained post-conviction relief).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

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