Smith v. Haden, Civ. A. No. 92-1899 (PLF).

• Decision Date: 14 October 1994
• Docket Number: Civ. A. No. 92-1899 (PLF).
• Citation: 868 F. Supp. 1
• Parties: Linda A. SMITH, Plaintiff, v. Mabel D. HADEN, Defendant.
• Court: U.S. District Court — District of Columbia

868 F. Supp. 1

Linda A. SMITH, Plaintiff, v. Mabel D. HADEN, Defendant.

Civ. A. No. 92-1899 (PLF).

United States District Court, District of Columbia.

October 14, 1994.

James G. Kolb, Washington, DC, for plaintiff.

Dwight D. Murray, Washington, DC, for defendant.

MEMORANDUM OPINION

FRIEDMAN, District Judge.

This is a legal malpractice action that is scheduled for trial before the Court beginning on Monday, October 17, 1994. Plaintiff claims that she timely employed Defendant, a lawyer, to file a civil action against Javis Odom in Anchorage, Alaska, but that Defendant failed to file the action prior to the running of the applicable statute of limitations, thus breaching her duty to Plaintiff. Plaintiff further claims that Defendant's breach of duty was the proximate cause of her losing an opportunity to recover in a suit against Mr. Odom. The issue before the Court, which both parties agree must be decided in advance of trial, is whether, in a legal malpractice case, the Plaintiff or the Defendant has the burden of proving collectibility or non-collectibility of the lost judgment. The Court concludes that the burden is on Defendant to prove non-collectibility.

In a legal malpractice case in the District of Columbia the plaintiff bears the burden of presenting evidence establishing that the parties entered into an attorneyclient relationship, what the applicable standard of care is, that the standard of care has been violated by the defendant-lawyer, and that there was a causal relationship, or proximate cause, between the violation and the harm complained of — in this case, the loss of a judgment in some sum against Mr. Odom. See Battle v. Thornton, 646 A.2d 315, (D.C. 1994), citing O'Neil v. Bergan, 452 A.2d 337, 341 (D.C.1982); Morrison v. McNamara, 407 A.2d 555, 560 (D.C.1979). To show that the negligence was the proximate cause of the injury, Plaintiff must show that she had a good cause of action against the party she wished to sue; otherwise, the plaintiff "loses nothing by the conduct of his attorney even though the latter was guilty of gross negligence." Niosi v. Aiello, 69 A.2d 57, 60 (D.C. 1949).

Collectibility is not a specific element of a legal malpractice claim in the District of Columbia. The courts of the District of Columbia have never addressed whether the issue of collectibility should be part of a legal malpractice case and, if so, who bears the burden of demonstrating collectibility or noncollectibility. As the parties point out, the courts in other jurisdictions are split on this issue.

Those courts that place the burden of proving collectibility on the plaintiff have reasoned that the issue of collectibility is closely related to the issue of proximate cause, on which the plaintiff clearly heirs the burden. Those courts have concluded that a plaintiff must demonstrate that if defendantlawyer had timely brought a case on behalf of plaintiff the plaintiff would have succeeded on the merits in the underlying case and would have succeeded in collecting on the resulting judgment, because only then would plaintiff have proven that the lawyer's malfeasance was the proximate cause of plaintiff's loss. Graefe v. Connolly, 1987 WL 4854 1987 U.S.Dist. LEXIS 4077 (N.D.Ill.1987); Sitton v. Clements, 257 F.Supp. 63, 67 (E.D.Tenn.1966). Some courts have explained that, in a legal malpractice case, plaintiff necessarily must prove a "case within a case," that is, plaintiff must demonstrate that, had the lawyer acted in a timely manner, the plaintiff would have succeeded in the underlying lawsuit and, as part of the malpractice suit, plaintiff therefore must also prove that the underlying judgment was collectible. McDow v. Dixon, 138 Ga.App. 338, 226 S.E.2d 145 (1976).

The Court does not find this line of reasoning persuasive. While Plaintiff does have to prove a "case within a case," in that she must show that she had a good cause of action against the party she wished to sue in the underlying case, Niosi v. Aiello, 69 A.2d at 60, it does not logically follow that she must also prove that if she had obtained a judgment it would have been collectible. In a normal civil lawsuit, such as the one Plaintiff alleges she proposed bringing against Mr. Odom, a plaintiff must prove each required element to make out a case against the defendant in order to obtain a judgment. It is not necessary to demonstrate that plaintiff will successfully be able to execute on the judgment or that the judgment is collectible. Normally, enforcement of the judgment remains for another day. In a legal malpractice action alleging that an attorney failed to timely file suit, a plaintiff is required only to prove the loss of a judgment on a valid claim.

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