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

  collectible.

¶ 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,

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




                                     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

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

  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


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  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

  been collectible.

¶ 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


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               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.




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