Does a plaintiff have a right to a jury trial in a legal malpractice case?

action is equitable, the right to jury trial in the legal malpractice case prevails. (Ibid.) In Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 105 Cal.Rptr.2d 88, the court explained that a malpractice plaintiff had the right to a jury trial on the "trial-within-a-trial" aspect of his case, notwithstanding the underlying case would have been before specialized arbitrators regarding complex issues. "[I]n legal malpractice cases, whether a court or jury decides the underlying case-within-a-case does not turn on the identity or expertise of the trier of fact, but whether the issues are predominately questions of fact or law." (Id. at p. 970, 105 Cal.Rptr.2d 88.)

The question of actual innocence is inherently factual. While proof of the government's inability to prove guilt may involve technical defenses and evidentiary rules, proof of actual innocence obliges the malpractice plaintiff "to convince the civil jurors of his innocence." (Hicks v. Nunnery (2002) 253

[131 Cal.App.4th 765]

Wis.2d 721, 748-749, 643 N.W.2d 809.) Thus, the determination of actual innocence is rooted in the goal of reliable factfinding. (Shaw v. State, supra, 861 P.2d at p. 570-571.)