What happens when the plaintiff may or may not have been able to collect from the underlying defendant? In attorney malpractice, it is always the obligation of plaintiff to
prove that “but for” the negligence of the attorney, he would have had a successful or better outcome. What happens when the entity he would have successfully sued, “but for” the defendant attorney’s negligence, has gone out of business, or had no insurance, or its insurance carrier denied coverage?
Prior to Lindenman v. Kreitzer 7 AD3d 30 [1st Dept 2004] it was the obligation of plaintiff to prove collectability as a prima facie element of its direct case.
Now, however, it is defendant attorney’s burden to show an “avoidence or mitigation” that the judgment, hypothetical or real, was uncollectable. “The attorney should bear the inherent risks and uncertainties of proving it.”
The attorney is required to prove uncollectability only for a “reasonable time”, not 20 years.