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Professional Liability Law
There’ll be Time Enough for Counting When the Dealing’s Done: Collectability in Legal
Malpractice Claims
 Kenneth A. McLellan
By Kenneth A. McLellan
I hope you are familiar with the song The Gambler, by the late, great Kenny Rogers, and, if you’re not, stop right now --- go listen to it --- and then come back and continue reading when you’re finished. The lyrics tell some great life lessons. In that song, Kenny Rogers regales us with a tale of a mysterious gambler he meets on a train. In return for a bit of whiskey, the gambler dispenses advice about how to play poker. The gambler advises that you should never count your money when you’re sitting at the table. There’ll be time enough for counting, when the dealing’s done.
The gambler’s advice comes to mind when defending a legal malpractice claim. When defending a claim, its very important to think not about what damages the Plaintiff may be able to prove, but, instead, what damages he could have collected in the underlying case. Plaintiff shouldn’t count his money (at the table) based on his damages. Plaintiff can only recover what he could have collected (based on what “cards were dealt” in the underlying case).
Before discussing collectability as a defense to a legal malpractice claim, let’s briefly review of the elements of a legal malpractice.
The Elements of a Legal Malpractice Claim
As a New Yorker, I will look at New York law here. Other states are discussed later in this article.
An attorney representing a client is expected to use a “reasonable degree of skill and be familiar with the applicable rules of practice and the settled principles of law and is expected to exercise reasonable care in representing the client.” Reasonable care is defined as a “degree of care commonly exercised by an ordinary member of the legal profession.” The Plaintiff must prove by a preponderance of the evidence that a Defendant-Attorney did not exercise that degree of skill.
If the alleged malpractice occurs within the context of representation in litigation, “but-for” causation becomes relevant. A trier of fact deciding such a case must

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