Colorado court: If you sue your lawyer for a lost judgment, you must prove it would have been collectible

By Charmaine Little | Feb 7, 2019

DENVER (Legal Newsline) – On Jan. 28, the Colorado Supreme Court ruled that a plaintiff bears the burden of providing evidence that a lost judgment in an attorney malpractice case is collectible.

“The court holds that because the collectability of the underlying judgment is essential to the causation and damages of a client’s negligence claim against an attorney, the client-plaintiff bears the burden of proving that the lost judgment in the underlying case was collectible,” Justice Monica Márquez wrote.

The Supreme Court reversed the judgment of the Court of Appeals, ruling it erred in concluding it was the attorney-defendant's responsibility of proving the judgment would have not been collectible in an attorney malpractice case, and remanded it for a new trial.

The Supreme Court added that the client and plaintiff, Della Gallegos, didn’t properly meet that burden of approval in her case against her lawyer, Patric J. LeHouillier and his law firm, LeHouillier & Associates, P.C. 

Justice Monica Márquez   Colorado Judicial Branch

It added that putting the burden of the plaintiff complies with tort theory. 

“In a legal malpractice claim alleging that an attorney mishandled an underlying case, the measure of a client-plaintiff’s damages is the amount of the underlying judgment that could have been collected,” Márquez said. “A plaintiff must prove ‘by a preponderance of the evidence that [she] has in fact suffered damage.’” 

Obliging the plaintiff to prove collectability isn’t unfair or unjust, the Supreme Court determined.

LeHouillier represented Gallegos in her medical malpractice suit against a radiologist after the doctor allegedly failed to detect a brain tumor three years earlier, which would have led to a less invasive and cheaper treatment.

LeHouillier backed out of the case as he said it didn’t make sense financially. The two parties challenged each other on whether he told Gallegos about his decision. The statute of limitations ran out on the timeline Gallegos had to sue the radiologist, and she then sued LeHouillier over legal malpractice allegations. 

While a trial court determined Gallegos had the burden of proving the judgment against Hughes was collectible, that court decided Gallegos met that burden. The jury also ruled a verdict that the radiologist did commit medical malpractice and that LeHouillier was negligent, finding Gallegos suffered $1.6 million in present and future damages. 

The attorney then fought the judgment, arguing there was no proof of causation. The trial court denied his motion and he appealed. The appeals court reversed and remanded it for a new trial. 

The Supreme Court then granted both sides’ petitions for writs of certiorari to let the higher court decide who had the burden of proving if the judgment would be collectible.

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