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(The following is an excerpt from unpublished opinion in the Superior Court of the District of Columbia, pertaining to the issue whether the plaintiff or the defendant in a legal malpractice case has the burden of proving the collectibility of a judgment in the underlying matter. The defense of this matter was handled by John Tremain May, Esq., of this firm.) "II. THE MOTION IN LIMINE "The legal issue presented in this motion is the question of whether a plaintiff in a legal malpractice action bears the burden of proving that he was actually damaged in order to make a prima facie case on liability. Here, as a practical matter, this translates into the more precise question of whether the plaintiffs bear the burden of proving that actual damages could have been collected on the underlying claim that was allegedly mismanaged or lost because of Sharlitt's negligence. "All parties seem to agree that the instant litigation against this estate cannot succeed if it is demonstrated by a preponderance of the evidence that no damages could have been collected from assets of SAT in the lawsuit that was filed by Sharlitt. "Plaintiffs specifically move this Court to adopt the rationale set forth in Smith v. Haden, 868 F.Supp. 1 (D.D.C. 1994) in which a United States District Court Judge ruled that a defendant bore the burden of proving the uncollectibility of a judgment as part of its defense of an action for legal malpractice. There is no trial court or appellate opinion from the local courts of the District of Columbia couched expressly in terms of "burden of proof" on collectibility. However, there are pre-existing, relevant opinions in legal malpractice cases from which compelling guidance can be extrapolated. "For the reasons that follow, this Court is convinced that the points and authorities cited by the estate are meritorious and that the burden of proving collectibility lies squarely with the plaintiffs. "For the sake of brevity, this Court adopts by reference the arguments (both written and oral) of the defendant herein. It is important for this Court to highlight those arguments that are especially persuasive and to elucidate why the plaintiffs cannot prevail on this point of law. "As a threshold matter, the concept of collectibility of a judgment is a bedrock element of proving that actual harm occurred that was the product of malpractice in the filing of a lawsuit. "In the instant case, one of the discrete forms of malpractice alleged by the plaintiff is an accusation that the decedent negligently litigated a specific lawsuit. The only form of damages that could have accrued from such "malpractice" would have been the amount of damages that could have been collected if a judgment had been obtained. Clearly, if the plaintiffs could not have collected on the judgment itself, they would have suffered no harm from the malpractice. According, in the unique factual posture of the allegations herein, there is no way to neatly separate the concepts of "collectibility" from direct proof of damages. "This Court cannot accept the basis upon which the District Court in Smith v. Haden attempted to rationalize the placement of the burden of proof upon the defendant, for several reasons. First, the District Court's treatment of the issue is conceptually flawed, insofar as the District Court readily presumed that there is no harm in the rendering of a purely advisory opinion. This is forbidden, as a fundamental principle of American jurisprudence. "The District Court stated, "having a factfinder (whether judge or jury) render a judgment on the merits in one's favor is itself a vindication of the legitimacy of the claim and has value regardless of whether it is wholly collectible." Id. at 2. "Evidently, the United States District Court views itself as being a forum for deciding whether a party was negligent even where there is no hope of any concrete result from such a finding. Parties do not file lawsuits simply for the purpose of proving a point. They file lawsuits in order to obtain money to salve their injuries. Regardless of the District Court's willingness to render what amounts to an advisory opinion, the Superior Court of the District of Columbia will not and cannot invoke or extend its jurisdiction to an accusation that leads nowhere or an accusation that has no monetary value attached to it. "Second, the District Court (while citing various cases from other jurisdictions that appear to bolster its ruling) utterly ignores the fact that the law of the District of Columbia is not silent on the issue of what a legal malpractice plaintiff must establish in his case-in-chief. "The District of Columbia Court of Appeals has stated that a plaintiff in a legal malpractice action bears the burden of proving all elements of a claim, including the fact that the negligence "result in and was the proximate cause of loss of the client." Niosi v. Aiello, 69 A.2d 57, 60 (D.C. 1949) . It is axiomatic that one cannot prove proximate cause of a loss if one cannot articulate what comprised the loss itself. "There is no such thing as judgment premised on liability but no damages. Furthermore, defendants are not required to put forward a defense. A plaintiff's case is insufficient by definition if no judgment could be rendered on the basis of the plaintiff's evidence alone. Indeed, this is yet another demonstration of the fallacy undergirding the decision in Smith v. Haden. Even if a defendant could mount an affirmative defense in a malpractice action, a defendant would also be entitled to litigate a motion for entry of judgment at the close of the plaintiff's case. Thus, if the plaintiff's evidence alone could not support a verdict for a concrete form of damages, the trial court would be required to enter judgment in favor of the defendant. The trial court could not be consigned to figure the amount of damages when the plaintiff's own record would be devoid of any facts upon which damages could be calculated. The trial judge cannot force a defendant to fill in the blanks in the plaintiff's case. "Even if the law of the District of Columbia were not sufficient to establish a clear burden of proof on collectibility, the common law of Maryland is the logical alternative source for this principle. A basic tenet of the developing jurisprudence of the District of Columbia is the preference status of the common law of Maryland. It is well settled that "Maryland, the source of the District's common law [isJ an especially persuasive authority when the District's common law is silent." Napoleon v. Heard, 455 A.2d 901, 903 (D.C. 1983); see Hull v. Eaton Corp., 825 F.2d 448, 453-54 (D.C. Cir. 1987) "Certain Maryland case law is explicit on the requirement of first proving damages as a precursor to establishing malpractice liability. Quite to the contrary on this issue, there is an appellate opinion on point in which the Court of Special Appeals of Maryland expressly approved a jury instruction that fixed the burden of proof of collectibility squarely upon the plaintiff. This case is: Glasgow v. Hall, 24 Md. App. 525. 332 A.2d 772 (Md. 1975) "Third, the District Court in Smith v. Haden appears to have reached its conclusion on the burden of proof issue by inappropriately and prematurely reaching into the merits of the malpractice claim itself. The District Court appears to have apportioned the burden of proof, not on the basis of law, but on the basis of considerations that presuppose the truthfulness and accuracy of the malpractice allegations. This approach is reflected in the District Court's remark that it was fairer to require the defendant to plead "uncollectibility" as an affirmative defense to malpractice because the passage of time in bringing the malpractice suit was "because of the defendant-lawyer's failure to act in a timely manner in the first place." Id. at 2. This remark evidences a pre-trial finding of negligence by the defending lawyer. The burden of proof issue more appropriately goes to allocation of trial burdens -- in a suit to establish the negligence itself. "Unlike the District Court, this Court will not attempt to prejudge the merits of the case in the process of deciding the extent of the plaintiff*s burden of proof in making out a prima facie case of negligence. The parameters of a plaintiff's burden of proof cannot be determined based upon the shifting sands of the facts during the preliminary stages of the litigation. The ground rules for the allocations of legal burdens must be clear and unambiguous prior to the adjudication of the merits of the case. "On the whole, the position of the plaintiff's is not meritorious. This Court does not regard this issue as a close question." Excerpt from Aviation Management Systems, Inc. v. Estate of Joseph H. Sharlitt, Admin. No. 752-96 (Superior Court of the District of Columbia, Probate Division) |
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