Collectibility and the Burden of Proof
I am currently defending a legal malpractice case for a friend of mine and have insisted that the plaintiff prove that amount of damages that would have been collectible in the underlying tort case. I have a hearing on this issue coming up shortly; the trial is this Winter.
I think the burden of proving collectibility should be on the plaintiff because it should be deemed part of the causation argument. More specifically, the plaintiff has to prove damages by reason of the alleged malpractice of the lawyer. (The lawyer failed to have process re-issued in a timely fashion, and the case was dismissed with prejudice). That means plaintiff must prove that what damages, if any, he would have been able to collect in the underlying tort action against the original defendant. The plaintiff should not be able to collect more damages from the lawyer defendant that he would have been able to collect against the original defendant. What the plaintiff lost was the right to proceed to trial against the original defendant, and therefore what he should be able to collect from the lawyer is what he could have collected from the original defendant.
Illinois Legal Malpractice Blog has a post that highlights a recent case taking the opposite view but goes on to cite cases that set forth the majority (and better reasoned) view.
There is one, unreported opinion from a Tennessee appellate court that discusses the issue and, in dicta, it says the collectibility is a non-issue. In other words, if this case is given any weight, a plaintiff in a legal malpractice case can collect more against the lawyer defendant than he or she ever could have collected against the original tortfeasor. That is simply ridiculous.
John...your argument is appealing. But, a judgment that is seemingly uncollectable today may be collectible tomorrow. Have you given any thought to this argument? In other words, what kind of proof should a victim of malpractice be required to produce?
I look forward to the trial court's ruling in your case. A local lawyer in Jackson may have the same problem. Thanks.
Robert
It is not so ridiculous - what about the client's inconvenience, attorneys' fees, loss of use of the money, etc. It is the price we attorneys must pay for screwing up...a penalty for abusing our clients' trust. Also, "collectibility" includes garnishing wages, possession of property, etc. While I am not advocating a windfall, these cases can settle reasonably, and when they do not, the aggrieved party may unjustly gain, in rare instances. Like any other Plaintiff's case.
John:
I respectfully disagree with you. The collectability of a judgment is irrelevant in any case. I believe you are starting down a very slippery slope. If collectablity is part of the measure of damages, then in every case the defendant gets to put on proof of his/her/its economic ability to pay or not pay and their insurance limits. That certainly will depress verdicts. One alternative approach may be to split the trial into 3 sections. First, try the underlying case and have the jury award damages if negligence is found. Then try the liablity of the lawyer. If the lawyer is found negligent, then try what are the actual damges, that is what is actually recoverable.