Update on Legal Malpractice Issue

Last Fall I wrote several posts ( here and here) on a one portion of the causation issue in legal malpractice cases.

A summary of my view:  I believe that a plaintiff in a legal malpractice case arising out of a claim that a personal injury case was mis-handled must prove that amount of damages that would have been collectible in the underlying tort case. First, the plaintiff would ordinarily prove the amount of liability insurance, if any, available to the original defendant. Second, if the plaintiff wants to collect a judgment more than the amount of the liability insurance originally available, he or she should have to prove that it was more likely than not that the plaintiff could have collected more than that amount from the tortfeasor. This will require proof of the income, assets and liabilities of the original defendant. In appropriate cases, the lawyer defendant will want to demonstrate that the income, etc. of the original defendant is such that the plaintiff cannot prove that the judgment would not have been collectible above the amount of liability coverage or that the evidence offered is insufficient to prove that any monies could have been obtained over and above the insurance monies.

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.

I am defending a lawyer in such a case right now and we are going to trial in less than two weeks.  The trial judge has ruled that the plaintiff has the burden of proving collectibility, and the judge has decided that the issue will be handled this way a trial:  We will try the case and ask the jury to determine the amount of damages, if any, that the plaintiff in the automobile wreck (my client had admitted he made an error).  Then, if the jury finds that the damages exceed the liability insurance limits available to the original tortfeasor, the same jury will hear additional  evidence on the collectibility issue.  The burden of proof will be on the plaintiff to show how much of the judgment would have been collectible.

As I have said before, I have absolutely no problem with holding lawyers accountable for their negligence. My point is that the standard of liability, causation, and damages should be the same as it is for everyone else. No better, no worse.