One of the cornerstones of legal malpractice law is that any hypothetical judgment that plaintiff should have received must have been collectible.  If defendant had filed a bankruptcy petition, or there was no insurance and no assets, then any hypothetical judgment that the attorneys did not obtain would not have been collectible, hence, there are no actual and ascertainable damages in the legal malpractice.  Example:  a judgment proof person negligently breaks your leg.  Whom would you have successfully sued and collected from?  If the answer is "nobody" then you do not have a good legal malpractice case.

In New York, the four departments disagree with each other over who has the burden of proof of collectibility.  In the Second and Fourth Departments, its plaintiff.  In the First Department, its defendant.  Lindenman v Kreitzer  2004 NY Slip Op 02498 [7 AD3d 30] ; April 6, 2004
Appellate Division, First Department is the landmark case.  "To the extent that Larson v Crucet (105 AD2d 651 [1984]) holds that proof of the collectibility of the underlying judgment is an essential element of the plaintiff’s cause of action for legal malpractice, we overrule that decision.

We further find that, where relevant, the issue of noncollectibility should be treated as a matter constituting an avoidance or mitigation of the consequences of the attorney’s malpractice (see e.g. Jourdain v Dineen, 527 A2d 1304, 1306 [Me 1987]) and the erring attorney should bear the inherent risks and uncertainties of proving it (see Kituskie v Corbman, 452 Pa Super 467, 474, 682 A2d 378, 382 [1996], affd 552 Pa 275, 714 A2d 1027 [1998]; Power Constructors, Inc. v Taylor & Hintze, 960 P2d 20, 31 [Alaska 1998]; Smith v Haden, supra, 868 F Supp at 2-3). "

Now, after many years, we see the near end of the Lindenman case. Lindenman v Kreitzer
2013 NY Slip Op 02356  Decided on April 9, 2013  Appellate Division, First Department.  From what we can glean, defendant presented sufficient evidence to trigger a hearing on the collectibility of the hypothetical judgment.  Put another way, defendant shouldered its burden on the issue, and a hearing is now to be held. 

"The trial court’s award of $5,500,000 for past and future pain suffering deviated materially from reasonable compensation to the extent indicated. Although plaintiff Bruce Lindenman demonstrated that he suffered a brain injury, he did not undergo surgery and was able to continue to engage in activities such as driving and playing tennis (cf. Paek v city of New York, 28 AD3d 207 [1st Dept 2006], lv denied 8 NY3d 805 [2007]). The award for past and future loss of services deviated materially from reasonable compensation under the circumstances to the extent indicated (see Penn v Amchem Products, 85 AD3d 475 [1st Dept 2010]; Cutrone v New York City Transit Auth., 73 AD3d 462 [1st Dept 2010]. Given that this was a bench trial, we need not remand for a new trial on the issue of damages (see Chock Full O’Nuts Corp. v NRP LLC I, 47 AD3d 189 [1st Dept 2007]; Hernandez v Bentinck, 17 AD3d 532 [2d Dept 2005]).

The trial court should have granted defendant’s motion for a collectibility hearing following the verdict and award of damages. In a legal malpractice action, it is not until "plaintiff has proved the case within the case, including the value of the lost judgment, that the issue of collectibility may arise" (see Lindenman v Kreitzer, 7 AD3d 30, 34-35 [1st Dept 2004]). [*2]The value of the lost judgment was proved on June 25, 2009 when the trial court issued its finding on the apportionment of liability and the value of the damages, and, at that time, defendant’s request for a hearing on the issue of noncollectibility should have been granted (id.). "