What is the problem of collectibility?

Imagine your child makes a schoolyard bet and then decides not to pay up. What should you do?

You might step in. If the bet was for a dollar or some other trivial amount, you could teach your child a lesson by making him or her pay. But if that schoolyard bet is for a million dollars? Odds are you aren’t going to honor that debt. No one would reasonably expect your child could pay a million dollars.

This is a lesson that also translates to legal malpractice. If you hope to win a malpractice claim, you need to show not only that you won your bet (that your attorney’s negligence led to financial damages) but also that you could have collected.

Real damages are more than a number

There are two key steps to any legal malpractice case. First, you want to show that your attorney somehow failed to act according to reasonable standards. This could be due to negligence, incompetence or malfeasance. Second, you need to show that you would have enjoyed a better outcome were it not for your attorney’s failings.

In many ways, this second step is the core of a legal malpractice case. It often means proving your original claim in a trial within a trial. And it means showing how your attorney’s failures led directly to real damages, meaning:

  • They have an actual value
  • You can show you could have collected them

In other words, as the courts stated in DiPalma v. Seldman, you need to show that better handling of your case would have led to a better result and “collection of same.” You can’t just show that the schoolyard bully owes you $1 million; you need to show he can pay, too.

What does this mean for my legal malpractice claim?

The burden for collectibility varies from state to state. In some states, the burden falls on the defense. Their courts expect your attorney to show you couldn’t have collected. In California, though, the burden typically lies with you. It’s your job to show the money was available once you proved you deserved it.

There are some exceptions, but the general idea is that you’ll have a tough time winning a malpractice claim for damages you could never have received, even if you deserved them.

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