Is a legal malpractice plaintiff required to prove that the underlying judgment that he would have obtained against the underlying defendant is collectible?
The rule in California is: Yes. Which is why the Court of Appeal here reverses a $91,734.29 malpractice award against an attorney (though affirming the $25,000 award for emotional distress).
It's somewhat unfortunate. I have very little doubt that the plaintiff here could have established that the underlying judgment would have been collectible. Most likely, her lawyer simply didn't realize that this was an element of the cause of action.
(Which, ironically, might arguably mean that her legal malpractice attorney committed malpractice. Oops.)
But, at trial, since there was no substantial evidence (or really any competent evidence at all) of the landlord's wealth, or insurance, or any other ability to pay the judgment, the judgment cannot stand.
At the same time, both the majority and the concurrence cogently argue that collectability should not be an element of the plaintiff's case. I agree.
I might perhaps not go as far as some (or all) of these justices. I do think it's an issue, since if the judgment isn't collectible (or saleable, etc.), then there's no damages. But I think it should be an affirmative defense on which the defendant has the burden of proof. Because most judgments are presumptively collectible (or saleable). So in those minority of occasions in which it's not, let's allocate the burden of proof to the party most able to raise the issue -- the defendant. Makes sense. I'm sure the defendant will raise the issue if, in fact, the underlying judgment debtor would have been judgment proof. They'll have every incentive to so argue.
And, yes, I know that "damages" are part of "plaintiff's" case, and proving that the judgment could have been collected is arguably part of damages because no collection means no damages. But we have any number of legal presumptions that reflect the modern world and allocate appropriate burdens of proof and/or production. Res ipsa. Presumption of sanity. Presumption of paternity. All sorts of stuff. It's just fine to allocate burdens based on such things. It'd be entirely appropriate to add "presumption that legal (and medical, and whatever) malpractice judgment is collectible" to the list.
At some point, it'd be great if the California Supreme Court said so.
Which it could do, I think, quite concisely.
There you go. I just basically wrote the article for you. Flesh it out with a few hundred footnotes over 50 or so dense pages, all of which add very little of substance to the above, and you're a published author.
