Chapter 24 - § 24.5 • REMEDIES|DAMAGES

• Jurisdiction: Colorado

§ 24.5 • REMEDIES/DAMAGES

§ 24.5.1—Actual Damages

A plaintiff must prove that he or she suffered damages as a result of an attorney's negligence.¹²⁵ If proven, the damages recoverable are generally limited to actual damages.¹²⁶ Often, the amount of damages in a legal malpractice action is the amount of the judgment entered against the plaintiff in the underlying case.¹²⁷ To the extent punitive damages were assessed in the underlying case, they may be considered part of the damages the plaintiff suffered as a result of his or her attorney's alleged negligence.¹²⁸

Damages may be in the form of attorney fees paid for incompetently performed services, and attorney fees paid to correct an attorney's mistake.¹²⁹ Where a client obtains a damages award against his or her attorney on a legal malpractice claim, the former attorney cannot deduct from the damages award the contingent fee that his or her client would have been obligated to pay had the former attorney successfully brought the underlying case to a conclusion.¹³⁰ Damages also may be in the form of lost profits, which require competent evidence that such profits would have been received but for the injury caused by the defendant.¹³¹ Even where the defendant attorney could have reasonably foreseen that the client would make business decisions based on the attorney's advice, however, the attorney cannot be liable for the client's business losses unless the actual harm the client suffered because of those business decisions was within the scope of the risk created by the attorney's negligence.¹³²

Noneconomic damages, including emotional distress damages, are not available in legal malpractice claims based on negligence.¹³³

§ 24.5.2—Exemplary Damages

Exemplary or punitive damages are governed by statute.¹³⁴ Punitive damages may be recoverable in legal malpractice claims.¹³⁵ To recover punitive damages, a plaintiff must prove beyond a reasonable doubt that the defendant engaged in willful and wanton misconduct.¹³⁶ C.R.S. § 13-21-102(1)(a) provides:

In all civil actions in which damages are assessed by a jury for a wrong done to the person or to personal or real property, and the injury complained of is attended by circumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the actual damages sustained by such party, may award him reasonable exemplary damages. The amount of such reasonable exemplary damages shall not exceed an amount which is equal to the amount of the actual damages awarded to the injured party.

The statute defines willful and wanton conduct as "conduct purposefully committed which...