Gallegos v. LeHouillier

2017 COA 35, 434 P.3d 698

• Court: Colorado Court of Appeals
• Decided: March 23, 2017
• Docket: 15CA0724
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2017COA35

Court of Appeals No. 15CA0724 El Paso County District Court No. 13CV32156 Honorable Robin L. Chittum, Judge

Della Gallegos,

Plaintiff-Appellee and Cross-Appellant,

v.

Patric J. LeHouillier and LeHouillier & Associates, P.C.,

Defendants-Appellants and Cross-Appellees.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE BERNARD Dunn, J., concurs Webb, J., concurs in part and dissents in part

Announced March 23, 2017

Anderson Hemmat McQuinn, LLC, Julie E. Anderson, Chad P. Hemmat, Ethan A. McQuinn, Jason G. Alleman, Greenwood Village, Colorado, for Plaintiff- Appellee

Hall & Evans, L.L.C., Malcom S. Mead, John E. Bolmer II, Andrew P. Reitman, Denver, Colorado, for Defendants-Appellants ¶1 A legal malpractice case is based on a claim that an attorney

breached his or her professional duty of care in a way that

proximately injured a client. See Hopp & Flesch, LLC v. Backstreet,

123 P.3d 1176, 1183 (Colo. 2005). Sometimes, such as in this

case, the client claims that the attorney’s breach of duty denied the

client success in a lawsuit against the defendant. (For the purposes

of clarity, we will call such a lawsuit the “underlying case.”) To

prevail in this type of malpractice case, the client must prove that

the attorney would have been successful in the underlying case by,

for example, winning a favorable judgment against a defendant.

Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 83 (Colo.

1999). Lawyers call this requirement proving the “case within a

case.” Id. (citation omitted).

¶2 It is clear to us that part of the case within a case may include

resolving the question of whether any judgment that the attorney

might have won in the underlying case would have been

“collectible.” Colorado law provides that, if the defendant in the

underlying case was insolvent and the client would not have been

able to collect on the judgment, then the client cannot prevail in the

malpractice case against the attorney.

1 ¶3 This appeal raises the issue of who bears the burden of

proving that the judgment would have been collectible. Must the

client prove that the judgment was collectible as part of establishing

a prima facie case? Or must the attorney, as an affirmative

defense, prove that the judgment was not collectible? See Welsch v.

Smith, 113 P.3d 1284, 1289 (Colo. App. 2005)(In a civil case, “[o]nce

a prima facie case is established, the opposing party . . . carries the

burden of establishing any affirmative defenses.”). We conclude

that the attorney must raise the issue of collectibility as an

affirmative defense, which means that he or she also bears the

burden of proving that the judgment was not collectible.

¶4 In this case, the plaintiff, Della Gallegos, sued defendants

Patric J. LeHouillier, an attorney, and his law firm, LeHouillier &

Associates, P.C., for legal malpractice. (We shall refer to the

attorney and the law firm together as “Mr. LeHouillier” because

their interests are congruent in this appeal.) The jury found that

Mr. LeHouillier had negligently breached his duty of professional

care when handling an underlying case for Ms. Gallegos.

¶5 As part of the case within a case, the trial court decided that

Ms. Gallegos bore the burden of proving that any judgment in the

2 underlying case — a medical malpractice case against a radiologist

named Dr. Steven Hughes — was collectible. But our review of the

record convinces us that there is no evidence to show that the

judgment was collectible. So we must reverse the judgment.

¶6 But that does not mean that we must enter judgment in favor

of Mr. LeHouillier. We also conclude that the trial court erred when

it placed the burden of collectibility on Ms. Gallegos because it

should have placed the burden on Mr. LeHouillier to prove that a

judgment against Dr. Hughes was not collectible. So we remand

this case for a new trial. We additionally instruct the trial court

that, at any new trial, Mr. LeHouillier must (1) raise the issue of

collectibility as an affirmative defense; and (2) bear the burden of

proving that any judgment against Dr. Hughes would not have been

collectible.

I. Background

¶7 Ms. Gallegos’s malpractice case against Dr. Hughes stems

from a 2006 MRI that he performed on Ms. Gallegos’s brain. Ms.

Gallegos claimed that Dr. Hughes overlooked a clearly visible

meningioma. (A meningioma is a tumor that forms on the

membranes that cover the brain or on the spinal cord inside the

3 skull. Although meningiomas are frequently benign, meaning that

they are not cancerous, they can nonetheless cause serious

problems, or even death, as they grow.)

¶8 Three years later, a different doctor spotted the meningioma

during another MRI. By this time, it had grown three times larger

than it had been in 2006.

¶9 Ms. Gallegos could have undergone noninvasive radiosurgery

to treat the meningioma if Dr. Hughes had diagnosed it in 2006.

But, by 2009, this treatment was no longer a viable option. So

surgeons performed three craniotomies, or surgical openings, of Ms.

Gallegos’s skull to remove as much of the tumor as possible.

¶ 10 Ms. Gallegos retained Mr. LeHouillier to sue Dr. Hughes. Mr.

LeHouillier investigated the case, but he decided in 2010 that he

would not proceed with the case because it did not make “dollars

and cents sense.”

¶ 11 Mr. LeHouillier claimed that he had informed Ms. Gallegos of

his decision in a meeting, adding that he would no longer represent

her. But he did not keep any written records to memorialize what

had been discussed at the meeting, and he did not send Ms.

Gallegos a letter to inform her that he was no longer her attorney.

4 ¶ 12 The statute of limitations ran on any medical malpractice case

that Ms. Gallegos might have brought against Dr. Hughes.

¶ 13 Ms. Gallegos then filed this legal malpractice lawsuit against

Mr. LeHouillier. Among other things, the jury found that Dr.

Hughes had been negligent, that Mr. LeHouillier had been

negligent, that Ms. Gallegos had been partly negligent, but less

negligent than either Dr. Hughes or Mr. LeHouillier, and that Ms.

Gallegos was entitled to an award of damages from Mr. LeHouillier.

¶ 14 Turning to the issue of collectibility, during the trial and after

Ms. Gallegos had rested her case-in-chief, Mr. LeHouillier moved for

a directed verdict. He asserted that Ms. Gallegos bore the burden of

proving that any judgment against Dr. Hughes would have been

collectible, and that she had not carried her burden. The trial court

agreed that Ms. Gallegos bore the burden of proving that the

judgment would have been collectible, but it ruled that Ms. Gallegos

had provided sufficient evidence to prove that point.

¶ 15 After the trial, Mr. LeHouillier raised the same point in a

motion for judgment notwithstanding the verdict (JNOV). The court

made the same ruling.

5 II. There Was No Evidence That the Judgment Was Collectible

¶ 16 Mr. LeHouillier contends that we must reverse the judgment

because collectibility is an element that a plaintiff must prove in a

legal malpractice case, and Ms. Gallegos did not prove that any

judgment that she would have received in the underlying case

against Dr. Hughes would have been collectible.

¶ 17 Ms. Gallegos counters that the question of collectibility is an

affirmative defense, and that the court should have required Mr.

LeHouillier to prove that the judgment was not collectible. Ms.

Gallegos does not dispute that, if a 1927 Colorado Supreme Court

case is read as she suggests, a new trial would be appropriate.

Even though the trial court wrongly assigned the burden to her, she

continues, she shouldered the burden by providing sufficient proof

that the judgment was collectible.

¶ 18 As we have indicated above, we agree with Mr. LeHouillier that

the record does not contain sufficient evidence that the judgment

was collectible. But we agree with Ms. Gallegos that (1) the trial

court erroneously placed the burden on her to prove that fact; and

(2) the court should have required Mr. LeHouillier to (a) raise the

question of collectibility as an affirmative defense; and (b) prove that

6 any judgment that Ms. Gallegos would have received would not

have been collectible.

A. Standard of Review

¶ 19 We review de novo the grant or denial of a motion for directed

verdict or JNOV. See Vaccaro v. Am. Family Ins. Grp., 2012 COA

9M, ¶ 40. We view the evidence “in the light most favorable to the

party against whom the motion [was] directed,” id. at ¶ 45, and

“indulge every reasonable inference that can be drawn from the

evidence in that party’s favor,” Hall v. Frankel, 190 P.3d 852, 862

(Colo. App. 2008).

B. Evidence of Collectibility

¶ 20 Ms. Gallegos contends that she provided sufficient evidence to

support an “inference” that Dr. Hughes carried professional liability

insurance, which would mean that the judgment would have been

collectible. She points to the following facts in the trial record that

establish this inference:

 Mr. LeHouillier wrote Dr. Hughes a letter in which he

explained that he was representing Ms. Gallegos in a

potential medical malpractice case against the doctor. The

letter encouraged Dr. Hughes to “contact [his] professional

7 liability insurer.” According to Ms. Gallegos, after Mr.

LeHouillier sent this letter, “neither Dr. Hughes nor any

other person ever informed [Mr.] LeHouillier that Dr.

Hughes lacked insurance . . . .”

 When Dr. Hughes did not diagnose Ms. Gallegos’s

meningioma in 2006, he was a licensed doctor who was

practicing medicine at a hospital. Section

13-64-301(1)(a.5)(I), C.R.S. 2016, required all practicing

doctors to maintain professional liability insurance covering

each incident up to one million dollars.

¶ 21 We conclude, for the following reasons, that this evidence did

not create the inference that Ms. Gallegos suggests. Turning first to

the letter, although Dr. Hughes may not have informed Mr.

LeHouillier that he did not have liability coverage, he did not inform

Mr. LeHouillier that he possessed liability coverage, either. Indeed,

Dr. Hughes said nothing at all. He did not respond to the letter in

any way; he did not provide any other information to Mr. LeHouillier

or to Ms. Gallegos; and Ms. Gallegos did not offer any proof that Dr.

Hughes had even received the letter. Like Godot, Dr. Hughes’s

8 appearance in the case may have been much anticipated, but it

never came to pass.

¶ 22 Ms. Gallegos’s reliance on section 13-64-301(1)(a.5)(I) fares no

better. True enough, the record supports the conclusion that Dr.

Hughes was a doctor who was practicing medicine when he

performed the MRI on Ms. Gallegos, so the statute may well have

applied to him. But we cannot find anywhere in the record — and

Ms. Gallegos does not provide us with any direction to a specific

place — where the jury learned about section 13-64-301(1)(a.5)(I).

And we do not know whether Dr. Hughes had complied with the

statute by maintaining liability insurance. We cannot infer that the

jury reached its verdict based on the requirements of a statute that

it never heard anything about.

¶ 23 We recognize that we must view the evidence in the light most

favorable to Ms. Gallegos and draw every reasonable inference in

her favor. See Hall, 190 P.3d at 862. But the record contains no

evidence on collectibility at all. So we conclude that the “record is

devoid of any proof” that any judgment against Dr. Hughes in the

underlying case would have been collectible. Green v. Castle

Concrete Co., 181 Colo. 309, 314, 509 P.2d 588, 591 (1973).

9 ¶ 24 But our job is not yet over. In other situations, we would

simply enter judgment in Mr. LeHouillier’s favor because Ms.

Gallegos did not satisfy her burden of proof. But, in this case, we

must next decide whether the trial court erred when it allocated

that burden of proof by requiring Ms. Gallegos to prove that any

judgment against Dr. Hughes in the underlying case would have

been collectible.

III. The Attorney Bears the Burden of Proving That a Judgment Would Not Be Collectible as an Affirmative Defense in a Legal Malpractice Case

A. The Strange Case of Lawson v. Sigfrid

¶ 25 We encountered a mystery on the road to answering the

central question in this case. The mystery concerns a ninety-year-

old, one-and-one-quarter-page Colorado Supreme Court case,

Lawson v. Sigfrid, 83 Colo. 116, 262 P. 1018 (1927).

¶ 26 Courts from other jurisdictions and some commentators have

cited Lawson for the proposition that a plaintiff in a legal

malpractice case bears the burden of proving that any judgment in

the underlying case would have been collectible. See Beeck v.

Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 160 (Iowa 1984); Paterek

v. Petersen & Ibold, 890 N.E.2d 316, 321 (Ohio 2008); Kituskie v.

10 Corbman, 714 A.2d 1027, 1031 n.6 (Pa. 1998); Taylor Oil Co. v.

Weisensee, 334 N.W.2d 27, 29 n.2 (S.D. 1983); see also, e.g., 4

Ronald E. Mallen, Legal Malpractice § 33:32, at 747 n.5 (2017 ed.);

7 John W. Grund, J. Kent Miller & David S. Werber, Colorado

Personal Injury Practice — Torts and Insurance § 22:22, at 540 n.7

(3d ed. 2012); Elisa Recht Marlin, Recent Decision, Kituskie v.

Corbman, 714 A.2d 1027 (Pa. 1998), 37 Duq. L. Rev. 521, 530, 530

n.77 (1999).

¶ 27 But, after studying Lawson carefully, we conclude that it does

not stand for the entire proposition for which it has been cited.

Although we agree that Lawson held that the collectibility of a

judgment in the underlying case is pertinent to a legal malpractice

case, we respectfully disagree with those who think that Lawson

allocated the burden of proving collectibility to the plaintiff.

¶ 28 We begin our analysis by summarizing Lawson’s facts. The

plaintiff hired a lawyer in 1919 to sue Bessie Kennedy for an unpaid

debt. Lawson, 83 Colo. at 116-17, 262 P. at 1018. The case

lingered until 1923, when the plaintiff and the lawyer discovered

that the trial court had dismissed the case for failure to prosecute

it. Id. at 117, 262 P. at 1018.

11 ¶ 29 The plaintiff then sued the lawyer for “neglect of professional

duty.” Id. The trial court granted the lawyer’s motion for a directed

verdict. Id. In doing so, it decided that the plaintiff had to prove

three things:

 the lawyer had been negligent;

 the plaintiff had “a good cause of action” against Ms.

Kennedy; and

 if the plaintiff had obtained a judgment against Ms.

Kennedy, the judgment “could have been executed.”

Id. The trial court then found that the plaintiff’s proof that the

judgment could have been executed “had failed.” Id.

¶ 30 So, at this point in Lawson, we have learned that the trial court

had required the plaintiff to prove that the debt was collectible. See

id. But what did the supreme court do?

¶ 31 The court analyzed the record. As is pertinent to our analysis,

it stated that it was “clear” that (1) the lawyer “was not negligent”;

and, (2) shortly before the plaintiff had hired the lawyer, Ms.

Kennedy had been “insolvent.” Id.

¶ 32 The court described the plaintiff’s contentions. The plaintiff

raised three contentions, but only two of them are relevant to our

12 discussion. The plaintiff asserted that (1) the burden was on the

defendant lawyer to prove that Ms. Kennedy had been insolvent;

and (2) the plaintiff was entitled to recover his costs and expenses

from the lawyer. Id. at 118, 262 P. at 1018.

¶ 33 The court only used two citations to legal authority in the

opinion, and only one of them was even casually relevant to the issue

of collectibility. The relevant citation is to a legal treatise, 2 Charles

Frederick Chamberlayne, Treatise on the Modern Law of Evidence

§ 1047, at 1244 (1911). But this section of the treatise only stated

that, once a person was proved to be insolvent, there was an

inference that such insolvency would continue for a reasonable

time, subject to contrary proof. (The second, irrelevant, citation is

to a section of the legal encyclopedia Ruling Case Law, 8 R.C.L. 426,

discussing when nominal damages were available.)

¶ 34 The court then resolved the two contentions. The court first

held that the plaintiff’s evidence had shown that Ms. Kennedy had

been insolvent and that her insolvent status was “presumed to have

continued until the contrary appear[ed].” Lawson, 83 Colo. at 118,

262 P. at 1018. The court then concluded that the plaintiff could

not have “lost” any of his costs or expenses as a result of the

13 lawyer’s negligence because Ms. Kennedy was insolvent. Id. at 118,

262 P.3d at 1019.

¶ 35 Based on this analysis, we derive two observations about what

Lawson means.

1. We know what the supreme court did. The court’s

resolution of the plaintiff’s second contention established

that the question of collectibility matters in a legal

malpractice case: Because Ms. Kennedy was insolvent, the

lawyer’s negligence did not cause the plaintiff to lose his

costs and expenses.

2. We also know what the supreme court did not do. The

court did not hold that a plaintiff in a legal malpractice

suit bears the burden of proving that any judgment that

he or she could have obtained in the underlying case

would have been collectible. To be more accurate, it did

not allocate the burden of proving collectibility at all.

¶ 36 Fleshing out our second observation, it is true that (1) the

supreme court recognized that the trial court had reached the

conclusion that the plaintiff bore such a burden; (2) the evidence

had proved that Ms. Kennedy had been insolvent shortly before the

14 plaintiff had hired the defendant lawyer; and (3) the plaintiff had

contended on appeal that the burden was on the defendant lawyer

to show that Ms. Kennedy had been insolvent. Id. at 117-18, 262 P.

at 1018-19. But the court did not then hold that the trial court had

properly allocated the burden of proving Ms. Kennedy’s insolvency

to the plaintiff.

¶ 37 The court instead concluded that the plaintiff had proved that

Ms. Kennedy had been insolvent. Id. at 118, 262 P. at 1018. In

other words, the supreme court did not have to reach the issue

whether the trial court had properly allocated the burden of proof.

It merely recognized that, after the trial court had allocated the

burden of proving Ms. Kennedy’s solvency on the plaintiff, the

plaintiff had proved the opposite. See id. So, once the plaintiff’s

proof had shown that the debt was not collectible, the supreme

court did not need to decide anything else. Lawson did nothing

more than hold that the trial court’s conclusions about the evidence

were supported by the record. See id.

¶ 38 A pair of commentators agrees with our analysis of Lawson.

See Michael P. Cross & Nicole M. Quintana, Your Place or Mine?:

The Burden of Proving Collectibility of an Underlying Judgment in a

15 Legal Malpractice Action, 91 Denv. U. L. Rev. Online 53, 54

(2014)(explaining that Lawson “established the relevancy of the

question of whether an underlying judgment is collectible in a legal

malpractice action,” but that it did not allocate the burden of proof

on this point).

B. Colorado Cases After Lawson

¶ 39 Mr. LeHouillier does not cite, and we have not found, any

Colorado Supreme Court case that has held that the plaintiff bears

the burden of proving collectibility as part of the prima facie case in

a legal malpractice claim.

¶ 40 In the ninety years since the supreme court decided Lawson,

the supreme court has never cited it. But the court has decided

several legal malpractice cases in that time that have discussed the

“case within a case” component of proximate cause. The most that

any of them says is that a plaintiff “must demonstrate that the

claim underlying the malpractice action should have been

successful if the attorney had acted in accordance with his or her

duties.” Bebo, 990 P.2d at 83; accord Gibbons v. Ludlow, 2013 CO

49, ¶ 16 (transactional broker case applying test from Bebo); Rantz

v. Kaufman, 109 P.3d 132, 136 (Colo. 2005)(explaining that the

16 client must show the underlying case would have been successful

but for counsel’s malpractice).

¶ 41 The court of appeals has only cited Lawson once in a

published case. In Morris v. Geer, 720 P.2d 994, 996 (Colo. App.

1986), a legal malpractice case arising out of a divorce, a wife

alleged that her divorce attorney had been negligent when he

negotiated a property settlement and when he investigated the

husband’s fraud in hiding marital assets from the wife. The

division cited Lawson as support for the proposition that the wife,

when suing the attorney, was required to prove that “because of

husband’s fraud her motion to reopen the dissolution decree could

have been successfully prosecuted, and that she would have

received a higher property distribution as a result.” Id. at 998.

¶ 42 We do not think that the division cited Lawson for the

proposition that the wife had to prove that she would have been

able to collect the increased property distribution. Rather, in the

context of the case, we think that the division held that the wife

would have to prove the court would have awarded her more assets

in the property distribution. Indeed, the division did not use the

term “collectibility” in the opinion at all.

17 ¶ 43 Our conclusion is reinforced by the Morris division’s citation of

two other cases immediately after it cited Lawson: Coon v. Ginsberg,

32 Colo. App. 206, 509 P.2d 1293 (1973), and Rosebud Mining &

Milling Co. v. Hughes, 21 Colo. App. 247, 121 P. 674 (1912). Both of

those cases merely observed that, to prove a legal malpractice

claim, the plaintiff would have to show that he or she would have

been successful in the underlying case. Coon held that the plaintiff

had to prove that “the amount of that judgment would have been

more favorable to [her] than the settlement arranged by [her

attorney].” 32 Colo. App. at 210, 509 P.2d at 1295. Rosebud

Mining & Milling Co. stated that the defendant claimed that the

plaintiff had to show that “the judgment, on a retrial, would have

been favorable to plaintiff,” that the plaintiff had not “taken issue

with defendant on this point,” and that three out-of-state cases

“tend[ed] to sustain [the defendant’s] contention.” 21 Colo. App. at

250, 121 P. at 675.

¶ 44 Neither case discussed collectibility.

¶ 45 (We note that Miller v. Byrne, 916 P.2d 566, 579 (Colo. App.

1995), contained similar language to what we highlighted in Morris.

But the division did not cite any authority, let alone Lawson, to

18 support this language. It held instead that the jury should have

been instructed that the plaintiffs “were required to prove . . . the

amount that [they] should have recovered” in the underlying case.

Id. The context of this statement convinces us that the use of the

word “recovered” did not mean that plaintiffs had to prove what

they would have “received.” Rather, they had to prove, as part of

showing that they had suffered damages, the approximate amount

of any judgment that they would have been awarded if they had

been successful in the underlying case.)

¶ 46 So why have other jurisdictions and commentators cited

Lawson for a conclusion that we think it did not reach? Although

we cannot be sure, we have a hypothesis.

C. How Lawson Has Been Cited in Other States

¶ 47 We have found at least two pre-Lawson cases where courts in

other states have held that the burden to prove collectibility rests

on the plaintiff. Jones v. Wright, 91 S.E. 265, 266 (Ga. Ct. App.

1917)(“In an action against an attorney to recover the amount of a

claim, . . . it is necessary that the petition against him show that

the lost claim was a valid one under the law, and that the debtor

was solvent.”); Piper v. Green, 216 Ill. App. 590, 593, 595

19 (1920)(same). But no court cited Lawson for this proposition for

forty-nine years.

¶ 48 Then, in 1976, the Georgia Court of Appeals included Lawson

as part of a string citation supporting the proposition that “[t]he

requirement that solvency be shown is both longstanding and

widespread.” McDow v. Dixon, 226 S.E.2d 145, 147 (Ga. Ct. App.

1976). (In this context, solvency “is not intended to imply a

bankruptcy-type standard, but rather is intended to illustrate the

original defendant’s ability to pay a judgment, had one been

rendered against him.” Id.) So far, so good, because, as we

recognized above, our supreme court reached this holding in

Lawson.

¶ 49 But the preceding sentence in McDow, at the end of the

previous paragraph, explained: “A client suing his attorney for

malpractice not only must prove that his claim was valid and would

have resulted in a judgment in his favor, but also that said

judgment would have been collectible in some amount . . . .” Id.

¶ 50 We think that the mischief lies in these two consecutive

sentences. Courts and commentators who would later read those

20 two sentences might well have thought that Lawson had held that

the client bears the burden of proving collectibility.

¶ 51 And so Lawson acquired the reputation of standing for a

proposition that it did not decide. In one case, it was included in a

footnote after the South Dakota Supreme Court quoted McDow.

See Taylor Oil Co., 334 N.W.2d at 29 n.2. It was marshaled, along

with McDow, in the ranks of a string citation that the Iowa Supreme

Court offered as support for the proposition that assigning to the

plaintiff the burden of proving collectibility is “the rule which is

applied generally.” Beeck, 350 N.W.2d at 160. Citing Lawson and

McDow, a superior court in Pennsylvania included Colorado and

Georgia in a list of thirteen states that “place[d] the burden upon

the plaintiff (in a malpractice action against an attorney) to prove

collectibility of the underlying judgment.” Kituskie v. Corbman, 682

A.2d 378, 381 (Pa. Super. Ct. 1996), aff’d and remanded, 714 A.2d

1027. The Pennsylvania Supreme Court cited Lawson and McDow

for the same proposition in a footnote when addressing an appeal

from the superior court’s decision. Kituskie, 714 A.2d at 1031 n.6.

And, although Paterek, 890 N.E.2d at 321, did not cite McDow, it

cited Taylor Oil Co.

21 ¶ 52 Once this ball got rolling, commentators included Lawson

among those cases placing the burden of proving collectibility on

the plaintiff without any analysis of the case beyond a simple

citation. See, e.g., Mallen, § 33:32 at 747 n.5; Grund, Miller &

Werber, § 22:22 at 540 n.7; Marlin, 37 Duq. L. Rev. at 530, 530

n.77.

¶ 53 Now that we see that we are writing on a blank slate as far as

allocating the burden to prove collectibility is concerned, we turn to

deciding whether that burden should be placed on the plaintiff in a

legal malpractice case. We review this issue de novo because it is a

question of law. See Allen v. Steele, 252 P.3d 476, 481 (Colo. 2011).

D. Allocating the Burden to Prove Collectibility

¶ 54 It should be apparent from the discussion up to this point that

many states place the burden of proving collectibility on the

plaintiff. In fact, it is the majority rule. In addition to the cases

that we have discussed above, one could look to other decisions,

such as Wise v. DLA Piper LLP (US), 164 Cal. Rptr. 3d 54, 61 (Cal.

Ct. App. 2013), and Viola v. O’Dell, 950 A.2d 539, 542 (Conn. App.

Ct. 2008), as examples of the majority. The Ohio Supreme Court

best summed up the reasoning for the majority rule in Paterek, 890

22 N.E.2d at 321: “[C]ollectibility is logically and inextricably linked to

the legal-malpractice plaintiff’s damages, for which the plaintiff

bears the burden of proof.” For the plaintiff to show “what was lost,

the plaintiff must show what would have been gained.” Id.

¶ 55 But there is a strong and growing minority of states that

allocate the burden differently, making the issue of collectibility an

affirmative defense that an attorney must raise and prove. (The

majority does not include many more states than the minority. One

commentator referred to the minority as “significant.” Mallen,

§ 33:32, at 752, 752 n.18. A pair of others called the number of

jurisdictions in the minority only “slightly less[]” than the number of

those in the majority. Cross & Quintana, 91 Denv. U. L. Rev.

Online at 58.) Some of the cases in the minority are of very recent

vintage. See, e.g., Smith v. McLaughlin, 769 S.E.2d 7, 18 (Va. 2015);

Schmidt v. Coogan, 335 P.3d 424, 428-30 (Wash. 2014). Others

were bottled some years ago. See, e.g., Smith v. Haden, 868 F.

Supp. 1, 2-3 (D.D.C. 1994); Power Constructors, Inc. v. Taylor &

Hintze, 960 P.2d 20, 31-32 (Alaska 1998); Teodorescu v. Bushnell,

Gage, Reizen & Byington, 506 N.W.2d 275, 278-79 (Mich. Ct. App.

23 1993); Carbone v. Tierney, 864 A.2d 308, 319 (N.H. 2004); Kituskie,

714 A.2d at 1032.

¶ 56 The minority rule relies on at least seven compelling

rationales.

¶ 57 First, by the time the issue of collectibility arises in a legal

malpractice trial, the need to prove it “is the result of an attorney’s

established malpractice . . . . It is a burden created by the negligent

attorney.” Schmidt, 335 P.3d at 428. To require clients to prove

collectibility therefore allocates the burden of proof unfairly, even

when the parties do not dispute that the defendant in the

underlying case was solvent. Id.; see also Carbone, 864 A.2d at

318. And a plaintiff in a legal malpractice case already has the

burden of proving negligence twice. (For example, in this case, Ms.

Gallegos must show that Mr. LeHouillier was negligent when he did

not file the medical malpractice claim against Dr. Hughes within the

statute of limitations. She must then establish, as part of proving

the case within a case, that Dr. Hughes was negligent when he did

not diagnose her meningioma.) See Kituskie, 682 A.2d at 382 (The

client “should not have the added burden of proving collectibility

24 since he or she has already been allegedly wronged by two

parties.”).

¶ 58 Second, an attorney is “in as good a position” to “prove

uncollectibility.” Schmidt, 335 P.3d at 428; see also McLaughlin,

769 S.E.2d at 18. This is because the attorney should have

investigated the solvency of the defendant in the underlying case at

the beginning of the client’s case. See Schmidt, 335 P.3d at 428.

And, even if the attorney did not do so, he is as capable as the

client to discover whether a judgment in the underlying case would

be collectible. See id.

¶ 59 Third, to require the client to introduce evidence of

collectibility would often be at odds with evidence rules and case

law generally excluding evidence of insurance coverage. See id. at

428-29; see also CRE 411 (“Evidence that a person was or was not

insured against liability is not admissible upon the issue whether

he acted negligently or otherwise wrongfully.”); Lombard v. Colo.

Outdoor Educ. Ctr., Inc., 266 P.3d 412, 421 (Colo. App. 2011)(“An

attorney’s attempt to refer to insurance coverage or a lack thereof at

trial is improper.”).

25 ¶ 60 Fourth, a delay between the original injury and a legal

malpractice claim is common, which could hurt the client’s

opportunity to gather evidence about collectibility. See Schmidt,

335 P.3d at 429. And “[i]t is unfair to place this burden on [the

client] when the attorney’s negligence created the delay in the first

place.” Id. (citing Kituskie, 714 A.2d at 1027).

¶ 61 Fifth, the insolvency of the defendant in the underlying case

permits the attorney to mitigate or to avoid the “consequences of

one’s negligent act.” Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me.

1987). Because the attorney will benefit from that insolvency, he or

she should bear the “inherent risks and uncertainties of proving it.”

Lindenman v. Kreitzer, 775 N.Y.S.2d 4, 8 (N.Y. App. Div. 2004).

¶ 62 Sixth, placing the burden on the attorney does not eliminate

the effect of insolvency; if the attorney proves that a judgment is not

collectible, damages could be mitigated or eliminated. Schmidt, 335

P.3d at 429. We therefore disagree with those cases that hold that

placing the burden on an attorney results in a “windfall” for the

client. Cf. Fernandez v. Barrs, 641 So. 2d 1371, 1376 (Fla. Dist. Ct.

App. 1994)(noting that the majority rule “prevents a windfall to the

client by preventing him from recovering more from the attorney

26 than he could have actually obtained from the tortfeasor in the

underlying action”), disapproved of on other grounds by Chandris,

S.A. v. Yanakakis, 668 So. 2d 180, 185 (Fla. 1995).

¶ 63 Finally, plaintiffs in the vast majority of negligence cases do

not have to prove that any judgment that they might win will be

collectible. Collectibility is simply not a value that most negligence

cases enter into the calculus of causation. See Haden, 868 F.

Supp. at 2 (“In a normal civil lawsuit . . . a plaintiff must prove each

required element to make out a case against the defendant in order

to obtain a judgment. It is not necessary to demonstrate that [the]

plaintiff will successfully be able to execute on the judgment or that

the judgment is collectible. Normally, enforcement of the judgment

remains for another day.”).

¶ 64 Some analysts and commentators have supported all or part of

the “growing trend,” McLaughlin, 769 S.E.2d at 18 (citation

omitted), of the minority rule.

 The minority rule has momentum. In 1999, at least

seventeen states followed the majority rule, while only four

states followed the minority rule. Marlin, 37 Duq. L. Rev. at

534. In 2014, seventeen states followed the majority rule,

27 and eleven states followed the minority rule. Cross &

Quintana, 91 Denv. U. L. Rev. Online at 57 n.27. And the

number of jurisdictions in the minority grew by at least two

cases after the Cross & Quintana article was published.

See McLaughlin, 769 S.E.2d at 18; Schmidt, 335 P.3d at

428-30.

 Even some of the commentators who listed Lawson as

placing the burden of proving collectibility on the client

noted that such an allocation of the burden of proof was a

bad idea. Grund, Miller & Werber, § 22:22, at 540 (The

concept of placing the burden of proof on a client “is

suspect, especially when the defendant attorney is charged

with negligence in his handling of a claim against an

insolvent party. This defense is an admission that the

underlying case should never have been brought by the

defendant lawyer.”).

 One commentator contended that it was “unjustifiable” to

place the burden of proving collectibility on the client,

adding that the attorney “should bear the burden of

persuading the jury that any judgment would have been

28 uncollectible, or at a minimum should bear the burden of

coming forward with evidence demonstrating that

uncollectibility was a real possibility.” John Leubsdorf,

Legal Malpractice and Professional Responsibility, 48

Rutgers L. Rev. 101, 150-51 (1995)(footnote omitted).

 Another commentator made a similar point, asserting that

attorneys should bear the burden of proving that a

judgment was uncollectible because “[c]ollectibility thus

becomes a means of reducing the damages that might

otherwise be owed, taking its place with such doctrines as

the avoidable consequences rule.” John H. Bauman,

Damages for Legal Malpractice: An Appraisal of the

Crumbling Dike and the Threatening Flood, 61 Temp. L. Rev.

1127, 1137 (1988).

 A pair of commentators observed that the “minority of

jurisdictions focus more on ideas of fairness” than the

majority of jurisdictions do. Cross & Quintana, 91 Denv. U.

L. Rev. Online at 58.

 Although the Restatement (Third) of the Law Governing

Lawyers § 53 cmt. b (Am. Law Inst. 2000), states that the

29 client ultimately bears the burdens of proving collectibility,

it places the burden on the defendant lawyer of “coming

forward with evidence” to “show that the judgment or

settlement would have been uncollectible.”

¶ 65 We are persuaded by the various rationales behind the

minority rule, and so we will apply it in this case.

¶ 66 We conclude that the trial court erred when it placed the

burden on Ms. Gallegos to prove that any judgment in the

underlying case against Dr. Hughes would have been collectible. In

any trial on remand, Mr. LeHouillier must raise the issue of whether

the judgment would have been collectible as an affirmative defense,

and he shall bear the burden of proving that the debt was not

¶ 67 We decline to address Mr. LeHouillier’s additional contentions

and any of Ms. Gallegos’s contentions on cross-appeal. We cannot

predict with any certainty whether any of these contentions is likely

to arise on retrial. See, e.g., People v. Reynolds, 159 P.3d 684, 690

(Colo. App. 2006)(addressing only those issues that are “likely to

recur”). For example, the contentions concerning damages will only

30 arise if Ms. Gallegos and Mr. LeHouillier decide to retry this case

and Ms. Gallegos is again successful.

¶ 68 The judgment is reversed. The case is remanded for a new

trial. The trial court shall, at any new trial, require Mr. LeHouillier

(1) to raise the issue of collectibility as an affirmative defense; and

(2) bear the burden of proving that any judgment against Dr.

Hughes would not have been collectible.

JUDGE DUNN concurs.

JUDGE WEBB concurs in part and dissents in part.

31 JUDGE WEBB, concurring in part and dissenting in part.

¶ 69 While “the collectibility of a judgment is not an issue in other

types of cases . . . a legal malpractice action is distinctly different

from an ordinary lawsuit.” Kituskie v. Corbman, 682 A.2d 378, 381

(Pa. Super. Ct. 1996), aff’d and remanded, 714 A.2d 1027 (Pa.

1998). Recognizing this difference, everyone before us agrees that

collectibility of the hypothetical judgment in the underlying case is

important. But just how important is it?

¶ 70 For me, proof of collectibility is so important that it must be an

element of a legal malpractice plaintiff’s case. And so I respectfully

dissent from the majority’s holding that relegates collectibility to a

mere affirmative defense, to be pleaded and proven by the

defendant attorney.

¶ 71 Both commentators and courts disagree over which side bears

the burden of proof on collectibility. But to begin, I agree with the

majority that

 in Lawson, our supreme court did not allocate this burden

of proof;

32  among cases in other jurisdictions, more courts require that

a legal malpractice plaintiff prove collectibility than require

that the defendant attorney prove insolvency;

 Ms. Gallegos did not present any evidence of collectibility;

and

 Mr. LeHouillier did not present any evidence of Dr. Hughes’s

insolvency.

¶ 72 But at this point, I part ways with my colleagues and join the

lion’s share of cases. In my view, the jury was properly instructed

that Ms. Gallegos bore the burden of proving collectibility. And

because she did not present any such evidence, Mr. LeHouillier’s

motion for a directed verdict should have been granted.

¶ 73 With great perseverance, the majority seeks to work around

the cases recognizing collectibility as an element of every legal

malpractice plaintiff’s burden concerning the so-called case within a

case. Instead of pursuing that quest into the far-off land of policy, I

would allocate the burden of proving collectibility to the legal

malpractice plaintiff based on three principles much closer to home.

Those principles are the basic negligence paradigm, the affirmative

33 defenses listed in C.R.C.P. 8(c), and the law’s strong preference for

avoiding windfalls.

¶ 74 First, legal malpractice can be pleaded as breach of contract or

professional negligence. Baker v. Wood, Ris & Hames, Prof’l Corp.,

2016 CO 5, ¶ 46. Ms. Gallegos chose negligence. As a result of her

choice, like in every negligence case, she had to prove duty, breach,

causation, and damages. See, e.g., Lombard v. Colo. Outdoor Educ.

Ctr., Inc., 266 P.3d 412, 416 (Colo. App. 2011).

¶ 75 Of course, the majority cannot reject this basic four-factor

paradigm. Yet, in my view, because collectibility affects not one but

two of those factors — obviously damages but also causation — the

majority gives it insufficient weight.

¶ 76 To be sure, even where a wrong has been shown, an action

fails without proof of causation and damages. See Gibbons v.

Ludlow, 2013 CO 49, ¶ 12 (“To recover on a claim of professional

negligence, the plaintiff must prove that the professional[’s] . . .

breach proximately caused an injury to the plaintiff, and that

damages resulted.”). In a legal malpractice claim alleging that a

lawyer mishandled an underlying case, the plaintiff’s damages are

not the amount of the hypothetical judgment, but the extent to

34 which that judgment could have been collected. As the court

explained in Paterek v. Petersen & Ibold, 890 N.E.2d 316, 321-22

(Ohio 2008):

In proving what was lost, the plaintiff must show what would have been gained. . . . The malpractice plaintiff need not prove the collectibility of the attorney she is suing, but she must prove that the attorney she is suing has indeed injured her through neglecting to properly handle a lawsuit that would have generated recompense. And her injury is measured by what she actually would have collected.

¶ 77 But the import of collectibility goes beyond just the measure of

damages. “If the underlying judgment was uncollectible, for

example, due to insufficient assets or bankruptcy, the lost value of

the judgment is not the proximate result of an attorney’s

negligence.” Schmidt v. Coogan, 335 P.3d 424, 428 (Wash. 2014);

see also Joseph H. Koffler, Legal Malpractice Damages in a Trial

Within a Trial — A Critical Analysis of Unique Concepts: Areas of

Unconscionability, 73 Marq. L. Rev. 40, 52 (1989) (“To predicate an

award of damages upon both the requirement that a judgment

would have been recovered and that it would have been collectible

. . . requires a showing of causation . . . that is conceptually no

35 different from that required in negligence cases generally.”), quoted

with approval in Klump v. Duffus, 71 F.3d 1368, 1374 (7th Cir.

1995) (applying Illinois law).

¶ 78 “The traditional approach rests primarily on the theory that it

is consistent with tort law: plaintiffs may recover only the amount

that will make them whole (and not a windfall), and the plaintiff

must prove both proximate cause and injury.” Schmidt, 335 P.3d at

428 (emphasis added). Yet, treating collectibility as an affirmative

defense dilutes this “traditional approach” by half — the majority

erases both damages and causation from the plaintiff’s side of the

ledger and then writes them on the defendant’s side.

¶ 79 Second, the sole affirmative defense involving damages is

“[a]ny mitigating circumstances to reduce the amount of

damage[s].” C.R.C.P. 8(c). By its very wording, this defense

assumes that the plaintiff has already proven at least some

damages. If not, the defendant would be entitled to a directed

verdict. See City of Westminster v. Centric-Jones Constructors, 100

P.3d 472, 477 (Colo. App. 2003). Thus, morphing collectibility into

an affirmative defense distorts C.R.C.P. 8(c).

36 ¶ 80 Third, the law disfavors windfalls. Dick v. Indus. Comm’n, 197

Colo. 71, 75, 589 P.2d 950, 952 (1979) (“The law should not allow

an employer or his insurer to reap a windfall . . . .”), overruled on

other grounds by Estate of Huey v. J.C. Trucking, Inc., 837 P.2d

1218, 1220 (Colo. 1992). But as cases on both sides of the

allocation question recognize, allowing a legal malpractice plaintiff

to rest without presenting any evidence of collectibility risks that

the plaintiff will recover more from the defendant lawyer than the

plaintiff could ever have recovered from the hypothetical defendant

in the underlying case. See, e.g., Klump, 71 F.3d at 1374

(“Hypothetical damages above the amount that Klump could

genuinely have collected from Eaves are not a legitimate portion of

her ‘actual injury;’ awarding her those damages would result in a

windfall.”); Fernandez v. Barrs, 641 So. 2d 1371, 1376 (Fla. Dist.

Ct. App. 1994)(noting that the majority rule “prevents a windfall to

the client by preventing him from recovering more from the attorney

than he could have actually obtained from the tortfeasor in the

underlying action”), disapproved of on other grounds by Chandris,

37 ¶ 81 Despite all of this — or perhaps because of it — the majority

advances seven policy considerations supported, in varying degrees,

by cases adopting the minority view. But relying on policy “is to

lean upon a slender reed.” Missouri v. Holland, 252 U.S. 416, 434,

(1920). And in states with intermediate appellate courts, deciding a

case based on policy “is more properly the province” of the state’s

supreme court. Rosenbloom v. Bauchat, 654 So. 2d 873, 876 (La.

Ct. App. 1995)

¶ 82 Be that as it may, I quote the majority’s articulation of these

policy considerations and respond to the cited authorities as

follows.

¶ 83 First, “to require clients to prove collectibility therefore

allocates the burden of proof unfairly.” But one might wonder

exactly what is “unfair” about applying basic principles of causation

and damages to legal malpractice. The authorities cited include

Carbone v. Tierney, 864 A.2d 308 (N.H. 2004), Kituskie, and

Schmidt. But a closer look shows that these cases do not carry the

weight that the majority places on them.

¶ 84 Carbone does not offer an independent analysis of fairness,

instead quoting the more recent Kituskie case for the proposition

38 that requiring the plaintiff to prove collectibility would be “an unfair

burden.” 864 A.2d at 318. And Kituskie advances this conclusion

on the basis that “the plaintiff’s legal malpractice action is often

brought years after the initial accident causing his injuries solely

because the defendant/lawyer failed to act in a timely and

competent manner.” 714 A.2d at 1031. I dispose of the delay

concern below.

¶ 85 Schmidt says that “the traditional approach unfairly presumes

that an underlying judgment is uncollectible.” 335 P.3d at 428.

But no Colorado case has presumed that a judgment is collectible.

And presuming collectibility would be difficult to reconcile with the

increasingly common practice of seeking bankruptcy protection.

See Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. __, __ n.2, 135

S. Ct. 1932, 1939 n.2 (2015) (from October 2013 through

September 2014, the number of bankruptcy cases filed more than

doubled the number of civil and criminal cases).

¶ 86 Schmidt also says that the need to address collectibility “is a

burden created by the negligent attorney.” 335 P.3d at 428. To this

observation, the majority adds: “And a plaintiff in legal malpractice

already has the burden of proving negligence twice.” While both

39 observations are accurate, they fall short of establishing unfairness

in two ways.

¶ 87 One, whatever a plaintiff must prove to prevail in a negligence

case is always necessitated by the defendant’s alleged negligence.

In a legal malpractice case, exactly the same could be said of the

plaintiff’s burden to prove the case within a case; yet that burden is

universally accepted across all jurisdictions. Various iterations of

proximate cause and foreseeability — sometimes labyrinths

resulting from a defendant’s negligence — have been attacked, to no

avail. See Sego v. Mains, 41 Colo. App. 1, 4, 578 P.2d 1069, 1072

(1978) (“The plaintiff lastly asserts that the jury instruction which

dealt with proximate cause and foreseeability imposed too onerous

a burden of proof upon her.”).

¶ 88 Two, merely because a burden is difficult does not make it

unfair, at least where, as discussed below, the plaintiff can meet it.

Compare DeCola v. Bochatey, 161 Colo. 95, 100, 420 P.2d 395, 397

(1966) (“[I]n our view the trial court committed no error when it

held, in effect, that the defendants had failed to sustain the rather

onerous burden of proof which devolves upon one who seeks

through adverse possession to divest the record owner of his lawful

40 title to real property.”), with Prutch v. Ford Motor Co., 618 P.2d 657,

660 (Colo. 1980) (“To impose an impossible or unreasonably

onerous burden of proof is to deny many consumers a meaningful

remedy.”). After all, in Colorado, statutory unconstitutionality must

be proven beyond a reasonable doubt, the heaviest burden of all.

See TABOR Found. v. Reg’l Transp. Dist., 2016 COA 102, ¶ 16 (cert.

granted Jan. 23, 2017).

¶ 89 The second policy rationale the majority puts forth, quoting

Schmidt, 335 P.3d at 428, is that the defendant attorney is better

positioned to prove uncollectibility because “the attorney should

have investigated the solvency of the defendant in the underlying

case at the beginning of the client’s case.” But I have been unable

to find a case holding that a lawyer malpracticed by failing to

investigate collectibility of a potential judgment debtor before filing

suit. And even if such a case could be imagined — perhaps a

collision with a vehicle driven by a thief seeking to escape the police

— as relevant here, the majority fails to explain why a lawyer could

not assume collectibility because a Colorado physician would

maintain the statutorily required insurance coverage. In contrast,

the underlying claim in Schmidt was a slip and fall in a grocery

41 store. And in any event, if the lawyer had undertaken some inquiry

into collectibility, that information would be in the lawyer’s files,

subject to the plaintiff’s discovery.

¶ 90 The majority also cites Smith v. McLaughlin, 769 S.E.2d 7, 18

(Va. 2015). But McLaughlin did not address the comparative

burdens on the plaintiff and the defendant lawyer of proving

collectibility. Instead, the McLaughlin court observed that “[i]t is

unfair to presume that a silent record means that a judgment is

uncollectible.” Id. Yet, the court also recognized that, “successfully

prosecuting a claim to judgment is only half of the marathon that is

redressing an injury in our judicial system. Once armed with a

judgment, a plaintiff then has 20 years to collect that award . . .,

which can be frustrated by a number of factors.” Id. As indicated

above, the most obvious such factor would be bankruptcy.

¶ 91 But more importantly, the record here is not silent. Instead, it

shows that despite Mr. LeHouillier’s having notified Dr. Hughes of

the potential claim and urging the doctor to contact his professional

liability insurance carrier, no response from either the doctor or his

insurer was received. If the doctor carried such insurance, his

failure to notify the carrier, and the carrier’s failure to contact Mr.

42 LeHouillier for information on which to adjust the claim, would be

inexplicable.

¶ 92 “Third, to require the client to introduce evidence of

collectibility would often be at odds with evidence rules and case

law generally excluding evidence of insurance coverage.” But

evidence concerning a defendant’s insurance or lack thereof is

usually precluded because such evidence might improperly

influence the jury’s determination of liability. See CRE 411

(“Evidence that a person was or was not insured against liability is

not admissible upon the issue whether he acted negligently or

otherwise wrongfully. This rule does not require the exclusion of

evidence of insurance against liability when offered for another

purpose, such as proof of agency, ownership, or control, or bias or

prejudice of a witness.”); Johns v. Shinall, 103 Colo. 381, 387-90,

86 P.2d 605, 608 (1939).

¶ 93 In the legal malpractice setting, the coverage question pertains

not to the defendant lawyer but to the hypothetical defendant in the

underlying action. So, the risk that a jury would conflate coverage

and liability is low. And in any event, to avoid jury confusion, trial

43 of the collectibility issue could be bifurcated. See Hoppe v. Ranzini,

385 A.2d 913, 919 (N.J. Super. Ct. App. Div. 1978).

¶ 94 “Fourth, a delay between the original injury and a legal

opportunity to gather evidence about collectibility.” True enough,

any delay after the defendant lawyer was retained and had

conducted a reasonable investigation as required by C.R.C.P. 11

would be attributable to the lawyer. But neither Schmidt nor

Kituskie, both again cited by the majority, explains why delay would

be particularly detrimental to a plaintiff’s proving collectibility.

¶ 95 With most hypothetical defendants, and especially a

professional — as here — the best evidence of collectibility would be

insurance coverage. Consider that showing such coverage would

require just two easy and inexpensive steps: a short deposition of

the hypothetical defendant to identify the insurer and service of a

subpoena duces tecum on that insurer to obtain a copy of the

policy.

¶ 96 Yes, the process would be more complex if the hypothetical

defendant never obtained coverage or if a claims-made policy had

lapsed. Still, the hypothetical defendant could be deposed to

44 explore his or her net worth, as can be done post-judgment under

C.R.C.P. 69(i). Titled assets, primarily real estate, could be proven

through public records. And an asset search firm could be

employed to provide expert testimony tying this information

together. Hardly a Herculean task.

¶ 97 “Fifth, the insolvency of the defendant in the underlying case

permits the attorney to mitigate or to avoid the ‘consequences of

one’s negligent act,’” and as a consequence, the benefitted attorney

should bear the “risks and uncertainties of proving it.” (Citation

omitted.) But again, this formulation — especially the reference to

“mitigate” — only begs the question of whether collectibility should

be an essential component of proving causation and damages.

Recall that under C.R.C.P. 8(c), insolvency is mitigation evidence

only because the plaintiff has already proven causation and

damages.

¶ 98 Here, the majority cites Lindenman v. Kreitzer, 775 N.Y.S.2d 4,

8 (N.Y. App. Div. 2004), and Jourdain v. Dineen, 527 A.2d 1304,

1306 (Me. 1987). But Lindenman is just another delay analysis,

“since the legal malpractice action is likely to have been brought

years after the underlying events.” 775 N.Y.S.2d at 9. And

45 Jourdain relied on Me. R. Civ. P. 8(c), which is very similar to

C.R.C.P. 8(c).

¶ 99 “Sixth, placing the burden on the attorney does not eliminate

the effect of insolvency; if the attorney proves that a judgment is not

collectible, damages could be mitigated or eliminated.” On this

basis, the majority “disagree[s] with those cases that hold that

placing the burden on an attorney results in a ‘windfall’ for the

client.”

¶ 100 But this statement fails to answer the question of who should

bear the burden for two reasons. First, it evokes mitigation.

Second, it does not explain how the possibility of the defendant

lawyer presenting evidence that would persuade the trier of fact to

reduce the damages below the amount of the hypothetical judgment

avoids the risk that in the absence of such evidence, the plaintiff

would enjoy a windfall.

¶ 101 More importantly, this formulation conflates two principles:

collectibility and insolvency. Collectibility means “the degree to

which a judgment can be satisfied through collection efforts against

the defendant.” Black’s Law Dictionary 280 (8th ed. 1999). In

contrast, “[a] debtor is insolvent if the sum of the debtor’s debts is

46 greater than all of the debtor’s assets at a fair valuation.”

§ 38-8-103(1), C.R.S. 2016. And therein lies the fundamental

problem with the majority’s approach — insolvency is more than

the reciprocal of collectibility.

¶ 102 The burden on a plaintiff of proving collectibility would be

satisfied by showing insurance coverage or sufficient

unencumbered assets from which part of the judgment could

probably have been collected, as discussed above. But if the

burden is proving insolvency, the defendant lawyer would have to

first negate insurance coverage — admittedly no more difficult than

proving it. But then the lawyer would have to reconstruct the

hypothetical defendant’s entire financial position, accounting for all

of his or her assets and liabilities, to show insolvency. In other

words, proving uncollectibility implicates, as numerous courts have

recognized in many different contexts, “the difficulty of proving a

negative.” See, e.g., Rooks v. Robb, 871 N.W.2d 468, 471 (N.D.

2015).

¶ 103 Seventh, “plaintiffs in the vast majority of negligence cases do

not have to prove that any judgment that they might win would be

collectible. Collectibility is simply not a value that most negligence

47 cases enter into the calculus of causation.” True enough. But

whether the plaintiff may recover any of his potential judgment

matters not to whether the defendant tortfeasor has actually

harmed him. And as we all agree, legal malpractice cases are

distinct from most negligence cases — the borders of the case

within a case construct extend beyond entry of judgment in the

underlying case and include whether any judgment would have

¶ 104 Along with these seven policy considerations, the majority

relies on the Restatement (Third) of the Law Governing Lawyers. It

has frequently been cited in Colorado. See, e.g., Mercantile

Adjustment Bureau, L.L.C. v. Flood, 2012 CO 38, ¶ 20; Hannon Law

Firm, LLC v. Melat, Pressman & Higbie, LLP, 293 P.3d 55, 61 (Colo.

App. 2011). For this reason, I address it, but do not do so with the

other secondary sources in the majority opinion that lack a citation

history in Colorado.

¶ 105 The particular wording on which the majority relies is cryptic:

Thus, the lawyer’s misconduct will not be the legal cause of loss to the extent that the defendant lawyer can show that the judgment or settlement would have been uncollectible, for example because the previous defendant

48 was insolvent and uninsured. The defendant lawyer bears the burden of coming forward with evidence that this was so. Placement of this burden on the defending lawyer is appropriate because most civil judgments are collectible and because the defendant lawyer was the one who undertook to seek the judgment that the lawyer now calls worthless. The burden of persuading the jury as to collectibility remains upon the plaintiff.

Restatement (Third) of the Law Governing Lawyers § 53 cmt. b

(2000) (emphasis added).

¶ 106 In any event, as discussed above, the lack of a response to Mr.

LeHouillier’s demand letter constitutes some evidence of

uncollectibility. Thus, even under the Restatement view, “[t]he

burden of persuading the jury as to collectibility remains upon the

plaintiff.” Id.

¶ 107 In the end, I would follow the weight of case authority and

conclude that the jury was properly instructed. Ms. Gallegos failed

to present any evidence of collectibility. For these two reasons, I

would reverse the judgment against Mr. LeHouillier and dismiss the

case.