Legal Memorandum: Ineffective Assistance of Counsel Claim

Issue: In Wisconsin courts, what are the elements required to establish an ineffective assistance of counsel claim?

In order to prevail on an ineffective assistance of counsel claim, the claimant must show    that his trial counsel’s performance was so seriously deficient that he suffered prejudice so serious that the ultimate result is unreliable.  Strickland v. Washington, 466 U.S. 668 (1984); State v. Burton, 2013 WI 61, 349 Wis. 2d 1, 832 N.W.2d 611; State v. Balliette, 2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334.

The standard for deciding an ineffective-assistance claim is whether the claimant received reasonably effective assistance from a reasonably competent attorney.  State v. Burton, 2013 WI 61, ¶ 48, 349 Wis. 2d 1, 832 N.W.2d 611.  In Wisconsin, the elements of the claim are the same as those set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  See State v. Trawitzki, 2001 WI 77, ¶ 39, 244 Wis. 2d 523, 628 N.W.2d 801.  The defendant must show (1) the trial counsel’s performance was deficient; and (2) the deficiency in counsel’s performance prejudiced the defense.  Strickland, 466 U.S. at 687.  Both elements must be present.  If they are not, the result at trial does not stem from “a breakdown in the adversary process.”  Id.  Although the claim arises more frequently in criminal cases, the standard is the same in a civil proceeding.  See, e.g., In re Kristeena A.M.S.,