## Facts

- Norman Wartnick, a Midwest Florist Supply Company officer/shareholder, purchased a $100,000 “key man” life insurance policy on employee Robert Nachtsheim, naming Midwest as beneficiary.
- After Nachtsheim left Midwest to compete, Wartnick nevertheless paid a premium to keep the policy in force.
- Nachtsheim was shot and killed in 1973; no criminal charges were filed.
- Wartnick retained attorney Phillip Gainsley and the firm Moss & Barnett to represent him and Midwest during the police investigation and in related civil litigation.
- Nachtsheim’s widow sued for unjust enrichment based on the insurance proceeds; that action was consolidated with a later wrongful-death action against Wartnick after a statutory change removed the limitations period for wrongful-death claims alleging murder.
- During discovery, on Gainsley’s advice, Wartnick invoked the Fifth Amendment repeatedly when questioned about the murder; the deposition was later admitted and the jury was instructed it could draw an adverse inference.
- In the civil trial, Gainsley also told the jury in opening statement that Wartnick declined a police request to take a polygraph test.
- The jury found Wartnick murdered Nachtsheim or caused his murder and awarded substantial compensatory and punitive damages; the unjust-enrichment claim was dismissed. The judgment was affirmed on appeal.
- Wartnick later sued Gainsley and Moss & Barnett for legal malpractice, alleging negligent advice and trial decisions (Fifth Amendment advice, polygraph disclosure, discovery/deposition handling, and inadequate investigation/preparation).
- The district court granted summary judgment for defendants on all claims in two proceedings; the court of appeals affirmed.

## Issues

1. Whether a litigation-based legal-malpractice plaintiff must present admissible expert testimony sufficient to create a fact issue on breach of the standard of care and proximate causation.
2. Whether the challenged acts (Fifth Amendment advice, polygraph comment, deposition strategy, and alleged investigative failures) could support malpractice liability, including “but for” causation, or were nonactionable tactical judgments and/or speculative as to causation.

## Decision

- The Minnesota Supreme Court affirmed summary judgment for Gainsley and Moss & Barnett.
- The court held Wartnick’s expert submissions were insufficient on multiple theories because they were conclusory, failed to define an applicable standard of care, or failed to show non-speculative proximate causation.
- The court concluded several challenged decisions were within the range of reasonable professional judgment in complex litigation, including advice to invoke the Fifth Amendment given potential criminal exposure and the strategic choice to disclose the polygraph refusal.
- The court held Wartnick failed to satisfy the “case within a case” requirement because he did not show he probably would have obtained a more favorable outcome in the underlying wrongful-death action absent the alleged negligence.

## Legal Principles

- Legal malpractice requires: (1) attorney-client relationship; (2) negligence/breach; (3) proximate causation; and (4) proof that, but for the negligence, the client would have achieved a more favorable result in the underlying matter.
- Expert testimony is generally required to establish the professional standard of care and causation in attorney-malpractice claims, except for matters within lay common knowledge.
- Courts will not impose malpractice liability for mere errors in judgment; litigation tactics are actionable only if shown (typically by expert evidence) to fall outside reasonable professional judgment.
- Proximate-cause proof in litigation-based malpractice must be concrete and non-speculative; a plaintiff must identify how the alleged breach probably changed the admissible evidence, findings, or verdict.

## Conclusion

The court upheld summary judgment because Wartnick did not provide sufficiently specific expert evidence that counsel’s litigation choices breached the standard of care or that those choices probably altered the outcome of the underlying wrongful-death case, and several complained-of acts were treated as reasonable tactical decisions rather than negligence.


Wartnick v. Moss & Barnett, 490 N.W.2d 108 (Minn. 1992)