4-8 Collectibility

• Jurisdiction: United States

4-8 Collectibility

Fernandes v. Barrs²⁶⁵ arose from a lawyer's failure to sue Lake Community College ("LCC") for personal injuries sustained while his client was making a delivery on campus. The client therefore filed a legal malpractice action. A bench trial was held, and the client was awarded $398,670. On appeal, the attorney argued that he should have to pay no more than LCC would have had to pay. As a state agency, LCC's maximum statutory exposure was $100,000.²⁶⁶

The First District Court of Appeal agreed with the attorney because the "general rule is that the 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."²⁶⁷ The policy reason for this rule is to avoid "a windfall to the client by preventing him from recovering more from the attorney than he could have actually obtained from the tortfeasor in the underlying action."²⁶⁸

The court then provided guidance as to how this proof element can be met: "The plaintiff may ordinarily satisfy this burden with evidence of the original tortfeasor's financial status, insurance coverage, property ownership, and so forth if such evidence can be obtained."²⁶⁹ However, "when the negligence of the attorney makes it impossible to prove the collectability of the claim, the burden should be shifted to the attorney to prove that the judgment or any portion thereof was uncollectible."²⁷⁰

The court concluded by remanding the case to allow the attorney an opportunity to prove that the amount awarded in excess of the statutory cap could not have been collected.²⁷¹

The standard instruction on attorney malpractice has now been modified, with the notes explaining that Fernandes has been relied on in rewriting the instruction:

402.12 ISSUES ON CLAIM OF ATTORNEY MALPRACTICE ARISING OUT OF CIVIL LITIGATION The [next] issue(s) for you to decide on (claimant's) claim against (defendant) [is] [are] whether (defendant) was negligent in (describe alleged negligence) and, if so, if (defendant) had not been negligent, whether (claimant) would [have been successful] [have obtained a more favorable outcome] in [his] [her] [their] [its] [claim against (original adverse party)] [defense in (original proceedings)].
a. Negligence of plaintiff's counsel:
In (claimant's) claim against (original defendant) (claimant) would have

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