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Professional Liability Law
Split in New York Intermediate Level Courts over Burden of Proof on Collectability
Notably, there is a split among the four Appellate Division Departments, i.e., intermediate level appellate courts in New York, about the burden of proving collectability, or, non-collectability, as the case may be. The Fourth Department has held that “the burden of proving collectability [is] on the client.” That Court noted this is the majority view. The Court further noted that “[a] minority of jurisdictions take the view that (un)collectability is an affirmative defense that must be pleaded and proved by the attorney.” The Second Department has agreed with the view that Plaintiff in a legal malpractice action must show that damages were collectible.4
In contrast, another New York intermediate level appellate Court, the First Department, has held that “the issue of non-collectability should be treated as a matter constituting an avoidance or mitigation of the consequences of the attorney’s malpractice ... and the erring attorney should bear the inherent risks and uncertainties of proving it [.]”5
The Majority View is that Proving Collectability is the Plaintiff’s Burden
In a recent case, a Florida court held that “[T]he client/plaintiff in a legal malpractice action must prove both that a favorable result would have been achieved in the underlying litigation but for the negligence of the attorney/defendant and that any judgment which could have been recovered would have been collectible.” That Court focused on the fact that the only evidence of collectability was the existence of an insurance policy with a shared $250K limit per claim, and therefore the Court reduced a $4.5MM judgment down to $250K. The Court refused to “shift the burden of collectability to the legal malpractice defendants.”6
A California Court agreed with this position, holding that a “plaintiff who establishes legal malpractice in prosecuting a claim must also prove careful management would have resulted in a favorable judgment and collection of same.”7 Illinois’ approach is stated succinctly in a legal malpractice case that arose out of a medical malpractice case. The Court held: “a legal malpractice plaintiff is only entitled to recover those sums which he would have recovered if his underlying suit was successfully prosecuted.” 8 A Texas Court held in a legal malpractice case, that “the proper measure of damages is the amount that the plaintiff would have recovered and collected in the underlying suit if it had been properly prosecuted.”9
The Supreme Court of Colorado held that Plaintiff bears the burden of proof of proving collectability. The Court observed that “[because] the collectability of the underlying judgment is essential to the causation and damages elements of a client’s negligence claim against an attorney, we hold that the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible.”10
An Anomalous Louisiana Case, Legislatively Overruled
Of the cases I reviewed, one stood out as highly unusual. In Ewing v. Westport Insurance Corp., 315 So. 3d 715
4 Jedlicka v. Field, 14 A.D.3d. 596 (2nd Dep’t. 2005).
5 Lindenman v. Kreitzer, 7 A.D.3d 30 (1st Dep’t. 2004).
6 Morgan & Morgan v. Pollock, 306 So.3d 1251 (2020).
7 DiPalma v. Seldman, 27 Cal.App.4th 1499 (1994).
8 Bloome v. Wiseman, 279 Ill.App.3d 469 (1996).
9 Kelley and Witherspoon LLP v. Hooper, 401 S.W.3d 841 (2013).
10 Lehouillier v. Gallegos, 434 P.3d 156 (2019).

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