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Who Bears the Burden of Proving an Underlying Judgment Would be Collectible in a Legal Malpractice Case?

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This was the question the Colorado Court of Appeals tackled in Gallegos v. LeHouillier, No. 15CA0724 (Colo. Ct. App. March 23, 2017). To prevail in a legal malpractice case where the plaintiff alleged a lawyer breached the professional standard of care, the plaintiff must prove the underlying case would have been successful, but for the breach.

Under Colorado law, this includes proving not only that the lawsuit would have resulted in a judgment, but that the judgment would have been collectable. So, who bears the burden of proving an underlying judgment would have been collectable? The plaintiff, as part of the prima facia case, or the attorney-defendant, as an affirmative defense in claiming it would have not been collectible?

In this case, the plaintiff sued her former attorney as defendant for legal malpractice. The crux of the case was that the lawyer investigated a potential medical malpractice case for the client, but the lawyer decided to not pursue the case. However, he never sent a letter stating he no longer represented her or gave her information about the time limits for the claim. The statute of limitations for her medical malpractice case then passed. She sued the attorney-defendant for legal malpractice, and did not present direct evidence of collectability during her case in chief. Attorney-defendant sought a directed verdict, which was denied. The trial court held the plaintiff did have the burden of proving collectability, but found she had presented sufficient evidence of such (being the fact that the doctor was required to carry malpractice insurance.) After the court entered judgment in favor of the plaintiff, and the attorney-defendant moved for a JNOV, which was also denied. He appealed.

The appeals court reviewed the case de novo, and it agreed with the attorney-defendant that there was no evidence presented regarding the potential collectability of the judgment. The fact that the doctor was required by law to carry medical malpractice insurance was insufficient to prove he actually maintained such insurance. However, in an interesting twist, the appeals court ruled in favor of the plaintiff, holding that the burden was actually on the attorney-defendant, not the plaintiff, to prove the judgment would have been uncollectible as an affirmative defense. The appeals court reversed the judgment and remanded for a new trial.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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