Monday, April 22, 2024

Collectability

The Wyoming Supreme Court has held that collectability is an essential element of a legal malpractice action

In legal malpractice cases, the client claims an attorney’s negligence caused her damages. In some cases, like this one, the client alleges her damages are the loss of a legal action against a defendant (hereinafter referred to as the “underlying action”). In such cases, the client must show a “case within a case,” that is, that she would have obtained a favorable judgment in the underlying action but for the attorney’s negligence. The First Judicial District Court in Laramie County, Wyoming, certified four questions to this Court concerning what role, if any, the collectibility of the judgment in the underlying action plays in legal malpractice cases in Wyoming. We conclude the collectibility of the judgment is an essential part of the causation/damages element of a legal malpractice action which, like all elements of a civil cause of action, the client has the burden to prove by a preponderance of the evidence.

Alleged malpractice

Lula M. Tanner, age 90, resided at Deseret Health and Rehab at Rock Springs, LLC (Deseret). Deseret provided health care services. On January 30, 2015, Ms. Tanner began taking a new medication prescribed by her primary care physician. Her condition worsened and, about a week later, on February 5, 2015, an ambulance was called to take Ms. Tanner to the hospital. Ms. Tanner died a few hours later in the hospital’s emergency department. In January 2016, Ms. Tanner’s daughter, Patricia Kappes, contacted Diana Rhodes at the Diana Rhodes Law Firm, LLC, for a legal opinion concerning whether she had any legal recourse for her mother’s death against any of her mother’s health care providers. Ms. Rhodes agreed to “investigate” the matter. On February 9, 2017, Ms. Kappes called Ms. Rhodes for an update and noted her concern about the statute of limitations, which she believed was three years. Ms. Rhodes stated they had two years from Ms. Tanner’s death on February 15, 2015, to file suit. Ms. Kappes corrected Ms. Rhodes, stating Ms. Tanner died on February 5, 2015. Thereafter, Ms. Rhodes discovered she had mis-calendared the end of the limitations period as February 15, 2017, rather than February 5, 2017.

Ms. Rhodes retained successor counsel and sued the attorney.

The court here surveyed the law regarding collectability as an essential element rather than an affirmative defense and answered the certified question

The collectibility of the underlying judgment is an essential part of the causation/damages element of a legal malpractice action in Wyoming which, like the other elements, the client has the burden to prove by a preponderance of the evidence.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2024/04/the-wyoming-supreme-court-in-legal-malpractice-cases-the-client-claims-an-attorneys-negligence-caused-her-damages-in-so.html

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