When I attended oral argument the other day in People v Trakhtenberg (SCT Docket 143386), it was interesting to listen to the court's questions. The first issue upon which the Court granted leave was: "whether the 'attorney judgment rule,' as applied in a related case involving a claim of legal malpractice made by the defendant against his trial counsel in this criminal case, can be applied under a collateral estoppel theory to bar substantive review of evidence adduced at a hearing ordered by this Court to determine whether the defendant was denied his constitutional right to effective assistance of counsel." However, the Court quickly made it clear that it no longer thought that it was a viable issue, and wanted to focus instead on the other two questions in its leave grant order (regarding the evidence to support the trial court's decision to grant a new trial based on ineffective assistance of counsel and newly discovered evidence).

In a colloquy with the prosecutor, the Court not only backed away from the collateral estoppel question, but also seemed to open the door for some future case to a possibly attack to the decisions in Knoblauch v Kenyon, 163 Mich App 712 (1987), and Barrow v Pritchard, 235 Mich App 478 (1999), which held that a criminal defendant's legal malpractice suit against his criminal attorney could be collaterally estopped if he raised ineffective assistance of counsel in the direct criminal appeal. So although nothing is certain until the Supreme Court issues its decision, the questions at oral argument were certainly enlightening about how the court might treat collateral estoppel issues in this case and in future challenges.